Across the world, including India, for most purposes, all young persons in the age group of 0-18 years would be legally considered a child.[1] Several socio-legal and economic factors contribute to and encompass the personality of a child. Much of what becomes of a person is a result of his lived experiences.

The current generation is growing up engulfed by and completely engrossed in technology. People of all age groups have access to highly personalized social media. Media plays a huge role in influencing children's behavioural development. Exposure to age-inappropriate and violent content can have an adverse impact on the thought-process of a child, which might lead to moral decay of the society as a whole. Aggravated sexual depiction of men and women can create a dent in the understanding of sexual behaviour and normalize sexual objectification of women and even children. Exposure to inappropriate content can make them more susceptible to being taken advantage of or engaging in crimes themselves.

Due to advancement in technology, the cloak of anonymity can lead one to drop one's inhibitions and indulge in activities which one otherwise wouldn't. Several chat rooms, which guarantee privacy, have become a digital hangout for teenagers.

Amidst lockdown, when the whole world is fighting the nationwide pandemic of COVID-19, a disturbing news surfaced on May 4th, 2020 about the bois locker room, where India witnessed a passage of debates on internalized misogyny and perpetration of rape culture. The issue has raised serious concerns regarding consent, privacy and the ‘boys will be boys' culture. As most of the boys are underage, they would be tried under Juvenile Justice Act.

What is Juvenile Justice?

The word Juvenile has originated from the Latin word Juveniles which means young[2]. A Juvenile means a person who has not attained the age of majority or is below the age of 18[3]

The history of Juvenile Justice Act can be traced to the British Era. It was enacted to address some of the matters of Juvenile misconduct. The introduction of Whipping Act of 1864[4] is one of the major examples. According to this law, the juveniles were punished by way of whipping for the crimes committed by them to incite fear and to bring an end to such crimes or actions. The Indian Penal Code 1860, and the Criminal Procedure Code 1861, took forward the matter by treating the children differently throughout their various provisions.

Background
A recent social media scandal, which involved a chat room named Bois Locker Room became the centre of public attention when an Instagram user, on May 3rd, 2020, leaked chats from the group, including obscene pictures of around 15-16 girls. A case was registered on the grounds of transmitting obscene/sexually explicit content, outraging the modesty of a woman, forgery and use of obscene language.

The Delhi Police took suo moto cognizance of the matter after the Delhi Commission for Women took up the same and issued a notice to Instagram and Delhi Police. The Cyber Crime Cell of the Delhi Police then registered an FIR under sections 67 and 67A of the IT Act and Sections 465, 469, 471 and 509 of the IPC.[5] Two other incidents that run parallel to the locker room scandal were falsely linked to it. In one of the incidents a girl on snapchat impersonating as a guy proposed to gang-rape herself.

It was apparently done to check the integrity of the receiver.[6] In another case which took a tragic turn, a girl accused one Manav Singh, a 17-year old boy of molesting her in an Instagram post. Manav allegedly died of suicide after he started being harassed on social media. This raises the question of accountability of social media trials where the public acts as the judge and delivers judgment before the case even reaches the courts.[7]

We need to realize that the ‘bois locker room' incident is a symptom of a disease in our society and not the root of it.[8]The thread posted by the Instagram user transpired into a series of name-calling, blame games and subsequent rape threats in a bid to offload responsibility.

But in a way, it also sparked conversations and underscored on the need to talk about and debate on the need to propagate gender sensitivity, to have open conversations about sex as one of the reasons why the length of a skirt is sexualized is because a significant part of the population has not received proper sex education which in turn, has transformed into perverted perception about body parts and judging the character of women based on what they wear and even at times, attributing responsibility on a victim because of what she wore when an incident happened.

The case of Bois Locker Room has raised the conversation about the rape culture that permeates within the society. Infact, the police registered an FIR when one of the girls alleged that she was receiving offensive and threat messages after she shared the screenshots of the chats.[9].

After this incident many questions were raised one of them was can the morphed photograph of the minor be treated as child sexual abuse and child pornography?

Child pornography means portrayal of minors through videos, photographs or computer-generated content in a sexually explicit way. It is one of the most heinous crimes because it encourages rape of the children among other things.

Section 293 of the Indian Penal Code (IPC), 1860[10]states that, the distribution circulation and exhibition of obscene material below the age of twenty years is a criminal offence and such acts will be considered as cognizable offence.

Section 14 under POSCO Act criminalizes any form of act where there is use of the children for pornographic purpose in any form of media including the portrayal private parts, the sexual organs, or the portrayal of the child in an inappropriate way[11]. It also criminalises the storage of pornographic content for that commercial purpose.

Section 11(V) punishes the one who threatens to use the body of the child or depicts that child has been involved in any form of sexual activity in any form of media real of fabricated depiction through electronic film or any other mode[12].

The Information Technology Act, 2000 criminalises any action of sexual harassment in the form of photographs or in the form of child pornography and Section, 65B[13] criminalises the circulation and publication, which shows the children in explicit sexual acts.

The ongoing discussion on the Bois Locker room is a similar placed judgement in the court of United States. The case named United States of America V Gliberto[14]Valle revolved around the issue that whether the court should punish a person for having disturbing sexual fantasies.

Gliberto Valle used to have the sexual fantasies about killing, raping and harming women. Sometimes he also had fantasies of eating women as well as his wife. He often used to share the pictures of his wife and other women on Dark Fetish Network where he conveyed his desire to rape and eat women .Valle was then arrested and charged with the conspiracy to kidnap women. However, after his conviction the judge overturned the judgement saying that there is no such evidence to differentiate between fantasy and reality.

Though the fact of the present case was different with respect to Gliberto Valle case but was an act which objectified women without their consent which is a crime under the IPC and various other Sections of IT Act[15].And now this brings us to the issue that whether retributive justice can help in bringing about changes in the pre-existing misogynist culture which normalises rape against women?

The theory of retributive justice means linking the history to law which takes into account of the crime and surrounding circumstances. The theory of retributive justice is deep-rooted in the belief that a crime carries with itself a moral blameworthiness and the punishment should be equivalent to the moral deficit arising out of the act committed. However, in order to bring the offenders a sense of accountability, they should instead be counselled and sensitized towards other genders instead of throwing them into a bottomless pit of criminal justice.[16]

Conclusions
It is anguishing to see that the younger generation assumes that they have a say on a person's body or character and we still haven't resolved to a constructive discourse to tackle this issue effectively. Legal punishments might incite fear in the minds of people but would not necessarily change their mind set. While an initiative was taken by the Delhi Government to add gender sensitisation to the curriculum, but it eventually resulted in mere campaigns with no or very less interest shown by other institutions. What we need is to educate people, identify and debunk problematic patterns at the very onset.

An effective discourse needs to be formulated to tackle cyber bullying, to make people realize that their actions can have legal consequences and to educate the people at the receiving end of their rights and responsibilities.

End-Notes:

1. Dr. Mohua Nigudkar,e-PGPathshala,Child: Definition and Social construct of Child and Childhood(2014) 1520851344ChildandSocialConstruct_Module.pdf
2. https://www.thefreedictionary.com/Juveniles
3. https://www.law.cornell.edu/wex/juvenile_justice
4. https://blog.ipleaders.in/juvenile-justice-system/
5. https://www.mondaq.com/india/publishing/959952/legal-provisions-in-india-against-sharing-of-obscene-content-online-in-light-of-the-light-of-the-bois-locker-room-incident
6. https://twitter.com/saurabh3vedi/status/1259485428282871808
7. https://www.timesnownews.com/mirror-now/crime/article/gurugram-teen-suicide-cops-probing-link-to-bois-locker-room-chat-group/588318
8. https://www.outlookindia.com/website/story/opinion-boislockerroom-rehabilitation-not-retributive-justice-is-solution-to-indias-problem-of-rape-culture/352681
9. https://www.google.com/amp/s/www.outlookindia.com/website/amp/india--news-bois-locker-room-delhi-police-files-fir-after-girl-receives-online-threats/354345
10. https://indiankanoon.org/doc/601866/
11. https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/#:~:text=Section%2014%20of%20the%20POCSO,inappropriate%20portrayal
12. https://lawcirca.com/critical-analysis-of-the-legal-framework-on-cyber-child-sexual-abuse-material-in-the-indian-context/
13. https://warwick.ac.uk/fac/soc/law/elj/jilt/2009_1/mathew/mathew.pdf
14. https://www.eff.org/cases/united-states-v-gilberto-valle
15. http://www.legalserviceindia.com/legal/article-2286-bois-locker-room-controversy-and-the-law-related-to-the-liability-for-sharing-obscene-material-in-a-group-chat.html
16. https://www.outlookindia.com/website/story/opinion-boislockerroom-rehabilitation-not-retributive-justice-is-solution-to-indias-problem-of-rape-culture/352681
    
    

    Written By:

    1. Priyanshi Bainwala - NMIMS School of Law, Bengaluru and
       
    3. Pragya Upadhyay - Chanakya National Law University