Legal Matters

The Apex Court of India, in its landmark judgment on 24th September 2024 in the case Just Rights for Children vs. Harish and Ors, addressed this issue. Before going into the case details, let us first understand what child pornography means.

What is Child pornography or CSEM? (Child Sexual Exploitative & Abuse Material)

Any visual depiction of sexually explicit conduct involving a child includes photographs, videos, or digital images that are indistinguishable from an actual child, as well as images created, adapted, or modified to appear to depict a child. Child pornography is a crime that involves the sexual solicitation of a child under the age of 18 or the production of pornographic material involving a minor, luring children into online sexual relations, and then having sex with them. Additionally, recording sexual activities, creating MMS, and sharing such content with others are included in this definition.

Facts of the case

The All-Women’s Police Station in Ambattur, Chennai, Tamil Nadu, received a letter dated 29 January 2020 from the Additional Deputy Commissioner of Police (Crime Against Women and Children Branch). The letter stated that, according to the Cyber Tipline Report from the National Crimes Record Bureau (NCRB), respondent no. 1 is an active consumer of pornography and has allegedly downloaded child pornography on his mobile phone. Accordingly, in view of the aforesaid letter an FIR was registered against the respondent no. 1 on the very same day i.e., 29.01.2020 at the All- Women’s Police Station Ambattur, Chennai, and Tamil Naidu as Crime No. 03 of 2020 for the offence punishable under Section(s) 67B of the IT Act and 14(1) of the POCSO. During the course of the investigation, the mobile phone belonging to the respondent no. 1 was seized and sent to the Forensic Science Laboratory for analysis. The respondent no. 1 was also questioned whether he had ever viewed any pornographic content, to which the respondent no. 1 admitted that he used to regularly view pornography while he was in college. As per the Computer Forensic Analysis Report dated 22.08.2020 it was found that the mobile phone of the respondent no. 1 contained two video files relating to child pornography depicting two underage boys involved in sexual activity with an adult woman. The Computer Forensic Analysis Report further stated that more than hundred other pornographic video files were downloaded and stored in the said mobile phone.

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The National Crime Record Bureau data shows a stark increase in violence against women in India, including dowry deaths, acts of sexual harassment, torture, rapes and domestic violence. The report indicates that there were 90 rapes every day in India in 2021, one rape every 16 minutes in 2022 and 4 rapes every hour in 2023. A study has highlighted that India is considered one of the most dangerous countries for women.  Why does this happen? What are the underlying issues with Indian society? Why is there an escalation in violence against women? Before addressing these questions, let us first define what constitutes violence against women.

What is Violence Against Women?

It is crucial to clarify the concept of “violence” against women. Violence, also known as abuse, includes any form of physical aggression or mistreatment. When violence occurs within the home, it is termed domestic violence and involves family members such as children, spouses, parents, or servants. Domestic violence can manifest in various forms, such as hitting, kicking, biting, shoving, restraining, pulling hair, and throwing objects. Broadly speaking, it encompasses threats, sexual abuse, emotional abuse, controlling or domineering behaviour, intimidation, stalking, passive/covert abuse, economic deprivation, rape, marital rape, abduction, kidnapping, murder (all cases of criminal violence), dowry deaths, wife battering, sexual abuse, burning of private parts with a cigar, throwing chilli powder on a woman’s nude body, maltreatment of widows, and violence against elderly women (all cases of domestic violence).

Adv. Sr. Mary Scaria SCJM

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In a landmark move, India has overhauled its criminal justice system with the introduction of three new laws: the Bharatiya Nyaya Sanhita (BNS) 2023, the Bharatiya Nagarik Suraksha Sanhita (BNSS) 2023, and the Bharatiya Sakshya Adhiniyam (BSA) 2023. Effective from July 1, 2024, these laws replace the 1860 Indian Penal Code (IPC), the 1898 Criminal Procedure Code (CrPC), and the 1872 Indian Evidence Act. They aim to modernize and streamline the criminal justice system and ensure speedy justice to the common people. The new laws feature significant changes, including renumbering and reclassification of sections. For example, murder previously covered under IPC Section 302 is now under BNS Section 101, and cheating, which was in Section 420 of the IPC, is now Section 316 in the BNS.

The Indian Penal Code (IPC), established by the British in 1860, is over a century and a half old and was influenced by English law, the Napoleonic Code, and the Louisiana Civil Code. Originally comprising 23 chapters and 511 sections, it has now been streamlined into a more concise format.
The new Bharatiya Nyaya Sanhita (BNS) 2023 replaces the IPC with 358 sections across 20 chapters. The term “code” has been replaced with “Sanhita,” reflecting the aim to remove ambiguities and make the law clearer and more accessible. The new act eliminates outdated sections and updates terms to better align with current legal and social contexts. It also shifts from a punitive approach to a restorative one, introducing community service for certain crimes. Let’s explore what these updated Indian laws entail.

Adv. Sr. Mary Scaria SCJM

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A court in Delhi recently sentenced a 50-year-old man to life imprisonment for raping his 10-year-old daughter soon after her mother’s death. The court of Special judge (POCSO), her Ladyship Ms. Anu Aggrawal, said, “sexual use and exploitation of children is the violation of human, social and legal rights of the child and if the predator is the own family member of the child, more particularly, the biological father of the child, then it’s nothing less than a betrayal of trust and impairment of the social values.” The judgment dated 27th April 2024, further said “such offences leave a long lasting emotional and psychological impact. It leaves an indelible scar on the mental health of the child, which is invisible and cannot be measured by any yardstick. This invisible scar haunts the child throughout his/her life….”

Child sexual abuse is a worldwide phenomenon

Child sexual abuse is a global issue, and India is no exception. Census data from 2011 shows India has 472 million children under eighteen, yet the true extent of abuse is often underestimated due to under-reporting. In India, child sexual abuse has reached epidemic levels, with a 2017 survey by World Vision India revealing that one in every two children is a victim. Perpetrators are often known to the victim, leading to reluctance in seeking help. The Covid-19 pandemic has exacerbated the issue, with a rise in cybercrime. Awareness of the POCSO Act remains low, as evidenced by the 53,874 cases registered in 2021.

Sr. Adv. Mary Scaria SCJM

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The January, February and March issues of MAGNET discussed mental health and mental illness in series of articles. In this article, we present the rights of mentally ill persons. Like every other citizen, they have certain legal rights, which we will do well to know, especially if we are caring for a mentally ill relative or community member or if our institution looks after persons will mental illness. Further, as other articles in this magazine have highlighted, any of us can be affected by mental illness, just as we can fall physically ill. No one is assured a life without ailments.. –Editor

Here are the basic legal rights of mental ill persons.

1. Right to make an “Advance Directive” (AD)

By law, every medical officer is bound to provide persons with mental illness adequate treatment in line with what is called “Advance Directive” (AD).

Every person who is not a minor has the right to make an AD in writing, stating  the way s/he wants or does not want to be treated in case of mental illness. In the case of minors, their legal guardian can make this statement.

It shall be made in the manner specified by regulations by the Central Authority, and it may be revoked, amended or cancelled by the person who made it at any time.  The AD shall not apply to the emergency treatment given under section 103 of the Act to a person who made the AD.

Medical Practitioners or Mental Health Professionals shall not be held liable for any unforeseen consequences on following a valid AD.  They shall also not be held liable for not following a valid AD, if they had not been given a copy of the valid AD.

2. Right to Nominate a Representative

Every person who is not a minor shall have the right to appoint a nominated representative in writing.  Where no nominated representative is appointed, the legal guardian shall be their nominated representative unless the concerned Board orders otherwise. The nominated representative shall consider the current and past wishes, the life history, values, cultural background and the best interests of the person with mental illness.

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Fr Ravi Sagar SJ

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A year ago (March 2020), India Today magazine reported a 20% increase in patients with mental illness after the coronavirus outbreak in the country. The World Health Organization (WHO) emphasized that determinants of mental health and mental disorders include not only individual attributes, such as, the ability to manage one’s thoughts, emotions, behaviours and interactions with others, but also social, cultural, economic, political, and environmental factors, such as, national policies, social protection, living standards, working conditions, and community social supports.

Mental Health Issues in India
A holistic approach and comprehensive strategies are required for intervention, promotion, prevention, and treatment of mental health issues in India. National Mental Health Policies must be in place which not only promote treatment of mental health disorders but provide overarching directions on broader issues for ensuring mental health promotion. The WHO estimates that the burden of mental health problems in India is to the tune of 2,443 DALYs (“Disability-Adjusted Life Years”) per 1,00,000 population, and the age-adjusted suicide rate per 1,00,000 population is 21.1. It is also estimated that the economic loss due to mental health conditions between 2012-2030, is 1.03 trillion US dollars. The number of mental health workers in India show the inadequacy: For every 100,000 persons, we have only 0.3 psychiatrists, 0.12 nurses, 0.07 psychologists and 0.07 social workers.

Fr Ravi Sagar SJ

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Going through the Disaster Management Act 2005 (DMA – 2005), we have seen the authorities and funds created under the law.  Now we focus our attention on the offences and penalties under the Act and other matters related to it.

Offences Under the Law:

Sections 51 to 58 of the Act lay down what constitutes an offence in terms of obstruction of functions under the Act, false claim for relief, misappropriation of relief materials or funds, issuance of false warning, failure of an officer to perform the duty imposed on him under the Act without due permission or lawful excuse or his connivance at contravention of the provisions of the Act.  The clauses also provide for penalties for these offences.

Obstruction & Disobedience:

A person who obstructs any officer or employee in the discharge of his functions under this Act or refuses to comply with any direction given by or on behalf of him under this Act commits an offence.  On conviction, such person shall be punishable with imprisonment for a term up to one year or with fine, or with both.  If such obstruction or refusal to comply with directions results in loss of lives or imminent danger thereof, the convicted person shall be punishable with imprisonment  up to two years.

Fr Ravi Sagar SJ

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(continued from the December issue)

The District Disaster Management Authority (DDMA)

Every State Government shall by notification establish a District Disaster Management Authority (DDMA) consisting of a Chairperson (Collector or District Magistrate or Deputy Commissioner) and other members (not exceeding seven) including elected representative, the Superintendent of Police, the District Chief Medical Officer and persons appointed by the State Government.  The Chief Executive Member of the District Autonomous Council shall be the co-chairperson of DDMA.  In any district where a Zila Parishad exists, the Chairperson shall be the Co-Chairperson of DDMA.  The Chairperson shall preside over the meetings and shall also exercise and discharge powers and functions as the DDMA may delegate to him.  The Chairperson has the power to exercise all or any of the powers in the case of an emergency.  An officer of the rank of Additional Collector or Additional District Magistrate or Deputy Commissioner is to be appointed as the Chief Executive Officer of DDMA to exercise such powers and perform such functions as may be prescribed by the State Government and such other powers and functions as may be delegated to him by DDMA.

The DDMA or its Chairperson may, by general or special order, in writing, delegate such of its or his powers and functions to the Chief Executive Officer, subject to such conditions and limitations, if any, as it or he deems fit. DDMA shall meet as and when necessary and at such time and place as the Chairperson may think fit.

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Fr Ravi Sagar SJ

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Essential Services Maintenance Act (ESMA) of 1968 is a law with special reference to this lockdown period

Imposition of ESMA:

“The Covid-19 outbreak has breathed life into antiquated laws,” says The Economic Times of 21 March 2020.  In April 2020, the Uttar Pradesh Government decided to put on hold the increase of the Dearness Allowance (DA) for its sixteen lakh employees which was due from January 1, 2020.  The government decided not to pay DA instalments which will be due from July 1, 2020 and January 1, 2021.  Further, it imposed ‘The Essential Services Maintenance Act, 1968’ (ESMA) and prohibited strikes in workplace for the next six months.  Similarly, the Andhra Pradesh Government imposed ESMA on health and medical services for a period of six months from April 2020.  The Madhya Pradesh Government invoked it on 3 April 2020 across the state as a measure to prevent any strike by essential services delivery system, including the medical and health services.  Therefore, it is high time we learnt the provisions of ESMA, especially during this pandemic period.

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Fr Ravi Sagar SJ

The onslaught of Covid-19 pandemic triggered a panic buying of facemasks and hand-sanitisers.  The media focussed on the shortage of these commodities; a sudden, sharp spike in their prices and alleged hoarding of stocks by manufacturers and traders.  Hence, the Government of India brought face masks and hand-sanitizers under the Essential Commodities Act, 1955 (TECA-1955) and declared them essential commodities with effect from 13 March 2020 till 30 June 2020 to boost their supply and prevent hoarding.  On 08 July 2020, the Consumer Affairs Ministry said that they are no longer essential commodities as their supply is sufficient in the country.  This article explains the meaning and implications of this Act.

Origin of the Law:

During the first decade of its independence, India was facing a scarcity of food-grains.  The matter further worsened because of hoarding and black marketing.  The country had to import food to feed its population.  Hence, TECA-1955 was legislated in order to regulate the production, supply and distribution of essential commodities.  As per the provisions of this law, the Central Government (CG) declares certain commodities ‘essential’ in order to make them available to the general public at fair prices.

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Ravi Sagar