Syllabus
GS Paper II – Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
Context
The Supreme Court has recently broadened the scope of the POCSO Act in child pornography.
Child Pornography under POCSO
Introduction
In a landmark ruling, the Supreme Court of India has significantly expanded the scope of the Protection of Children from Sexual Offences (POCSO) Act to include the mere viewing of child pornographic material as an offence. This decision underscores the court’s commitment to safeguarding children from sexual exploitation and abuse. The ruling also calls for legislative amendments to replace the term “child pornography” with “child sexual exploitative and abuse material” to more accurately reflect the gravity of such crimes. This development marks a crucial step towards strengthening legal protections for children in India.
Child Pornography
- Ministry of Women and Child Development:
- Defines child pornography as any visual representation of sexually explicit behavior involving a minor.
- Includes photographs, videos, digital or computer-generated images indistinguishable from a real child, and images altered to appear as a child.
- POCSO Act 2012:
- Addresses various forms of abuse, including exposing children to pornography.
- Contains provisions for prosecuting sexual offenses against boys.
- Information Technology Act, 2000:
- Defines child pornography as any depiction through electronic media, including computer-generated images and animations, of a child engaged in sexually explicit conduct.
- Prohibits the production, creation, publication, or possession of child pornography in India.
- Indian Penal Code, 1860:
- Section 292 criminalizes the sale, distribution, exhibition, circulation, import, or export of any obscene material.
- Includes pictures, paintings, writings, books, pamphlets, or drawings that are lustful, lewd, or corrupting.
Legal Status of child pornography in India
- Section 67-B of the IT Act: Overview
- First Category: Involves the publication, transmission, or facilitation of child pornographic content in electronic form.
- Second Category: Penalizes individuals who create, collect, seek, browse, download, advertise, promote, exchange, or distribute such material digitally.
- Third Category: Targets those who entice or induce children into online relationships for sexually explicit activities or actions that may offend reasonable adults.
- Fourth Category: Includes those who facilitate child abuse through online platforms.
- Fifth Category: Covers individuals who record their own or others’ abuse involving sexually explicit acts with children in any electronic form.
- Sam Infant Jones vs State, 2021: Key Judgement
- The Madras High Court ruled that while there is no law prohibiting the private viewing of pornography, child pornography is distinctly different and falls outside the realm of protected freedoms.
- Section 67-B of the IT Act penalizes all forms of involvement with child pornography, including merely viewing it, thus making it an offence. The court held the accused guilty under this provision.
POCSO Provisions on Child Pornography
- Child Pornography: Any visual representation of sexually explicit behavior involving a minor, including photographs, videos, digital, or computer-generated images.
- Offences under Sections 14 and 15:
- Utilization: Employing a child for the creation of pornographic content.
- Possession: Holding or viewing any form of child pornographic material.
- Possession:
- Storage: Keeping or watching pornographic content involving a child in any format.
- Non-Reporting:
- Failure to Report: Not informing the designated authority about the existence of child pornographic material is a punishable act.
- Transmission:
- Distribution: Sending, sharing, displaying, or circulating child pornographic material in any manner.
- Commercial Purpose:
- Commercial Use: Holding child pornographic material for commercial exploitation.
Madras High Court Ruling on Child Pornography
- Madras HC Decision: The Madras High Court ruled that merely downloading and viewing child pornography does not constitute an offence under the POCSO Act and the Information Technology (IT) Act, 2000.
- NGO Plea in Supreme Court: Two NGOs have approached the Supreme Court, arguing that the Madras HC’s decision could harm child welfare and contradicts established legal principles.
- Supreme Court’s Reaction: A three-judge bench of the Supreme Court criticized the Madras HC’s ruling as “atrocious” and requested a response from the Tamil Nadu government.
- Quashing of Criminal Proceedings: The Supreme Court quashed the criminal proceedings against a 28-year-old man who was charged under the POCSO and IT Acts for downloading child pornography.
- Legal Interpretation:
- Section 67-B of IT Act: This section does not apply to cases where an individual has merely downloaded and watched child pornography without further action. It penalizes the publishing, transmitting, or creating of such material with imprisonment of 5 to 7 years and a fine up to Rs 10 lakh.
- Section 14 of POCSO Act: This section prescribes punishment for using a child for pornographic purposes, with imprisonment of at least 5 years and a fine. For repeat offenders, the imprisonment term is at least 7 years.
- Educational Measures: Society must focus on educating Generation Z (born between 1997 and 2012) about the dangers of porn addiction.
- Counselling Recommendation: The Madras HC advised the accused to seek counselling if he continues to struggle with addiction.
- Kerala HC Precedent: The Madras HC referred to a Kerala HC ruling which stated that watching pornography in private does not constitute an offence under Section 292 of IPC, which deals with the sale of obscene materials. The terms “lustful” or “lewd” are not clearly defined, leading to varied interpretations by the courts.
Supreme Court Interpretations
- Overturning High Court Verdict:
- The Supreme Court nullified the Madras High Court’s ruling.
- It declared that private viewing, downloading, storing, possessing, distributing, or displaying child pornography incurs criminal liability under the POCSO Act and IT Act.
- The Madras High Court had previously ruled that mere possession, storage, or private viewing of child pornography was not a crime.
- Terminology Change for Child Pornography:
- The Supreme Court recommended that Parliament amend the POCSO Act.
- It suggested replacing the term “child pornography” with “Child Sexual Exploitative and Abuse Material” (CSEAM).
- Inchoate Offences:
- Section 15 is not confined to penalizing the sharing or transmission of child pornographic material.
- It can also be applied to punish the intent to commit such acts.
- An inchoate crime is an incomplete or undeveloped criminal act, punishable due to its preparatory nature for a further crime.
- Broadening Section 15(1):
- Failure to “delete, destroy, or report” child pornography can lead the court to infer an intention to share or distribute the material.
- Constructive Possession: The definition of “possession” includes scenarios where an individual may not have physical possession but has the power to control the material and the knowledge of such control.
- Mandatory Reporting: An individual can only avoid criminal liability by reporting the material to the specified authorities.
- Historical Storage: Charges can be brought for possessing child pornographic material even if it was stored in the past and later deleted.
- Determining Intention: The intention of the accused can be inferred from how the material was stored or possessed and the circumstances under which it was not deleted or reported.
Importance of Using the Term CSEAM over Child Pornography
- Accurate Terminology:
- Essential for clear discussions and precise research.
- Avoids confusion and misinterpretation.
- Definition of CSEM:
- Refers to recordings of child sexual abuse or exploitation.
- Includes images, videos, or live-streamed content showing real children being abused.
- Reflecting True Reality:
- CSEAM more accurately depicts the reality of the material.
- Highlights that these are records of exploitation and abuse, not just pornographic content.
- Emphasizing Seriousness:
- The term “child pornography” fails to capture the gravity of the abuse.
- Undermines the severity of the exploitation from the child’s perspective.
- Preventing Trivialization:
- “Pornography” typically describes consensual acts between adults for sexual pleasure.
- Using this term for children risks normalizing and trivializing their abuse.
- Imagined Consent:
- Pornography is often perceived as consensual between adults.
- The term “child pornography” undermines the victimization of children by implying consent.
International efforts to combat child sexual exploitation material
- United Nations (UN): The UN has been vocal about the need for a global response to child sexual exploitation and abuse. They emphasize the importance of public awareness, protection of children, and bringing perpetrators to justice.
- INTERPOL: INTERPOL’s Specialists Group on Crimes Against Children works on global efforts and technical solutions to combat online child sexual abuse. They focus on identifying victims and their attackers and disrupting criminal networks involved in producing and circulating abusive content.
- Homeland Security Investigations (HSI): The DHS Child Exploitation Investigations Unit (CEIU) leads efforts in the U.S. and globally to combat child exploitation. They work on detecting and apprehending producers and distributors of child sexual abuse material, rescuing child victims, and training law enforcement partners.
- UNICEF: UNICEF supports various initiatives, including the Global Partnership to End Violence Against Children and the INSPIRE strategies, which are evidence-based prevention strategies aimed at ending violence against children by 2030.
Challenges in fighting against child sexual exploitation
- Technological Advancements: Offenders are increasingly using sophisticated technology to exploit children, making it difficult for law enforcement to track and stop them.
- Lack of Reliable Data: There is often a scarcity of comprehensive and reliable data on the scope and nature of child sexual exploitation, which hampers efforts to address the issue effectively.
- Cross-Border Crimes: Child sexual abuse material is often shared online across borders, and offenders may travel to countries with weaker law enforcement to exploit children.
- Inadequate Resources: Many organizations and law enforcement agencies lack the necessary resources and training to combat child sexual exploitation effectively.
- Private Sector Challenges: The technology industry sometimes fails to adequately address child sexual exploitation due to biases, flaws in programming, and insufficient community safety measures.
- Financial Sextortion: This crime involves coercing children into sending explicit images and then extorting them for money. It’s a growing issue that requires more focused efforts.
Way forward
- Supreme Court’s Role in Child Protection: The Supreme Court’s examination of this complex issue highlights the necessity for a balanced strategy that emphasizes the safety of children.
- Need for Legal Clarity: There is an urgent requirement for clear and consistent interpretation of laws concerning child pornography.
- Multi-Stakeholder Approach:
- Adopting a comprehensive approach that includes:
- Legal measures
- Social interventions
- Preventive strategies
- This integrated method is crucial for protecting children and ensuring a safer online environment.
- Adopting a comprehensive approach that includes:
Conclusion
The recent Supreme Court ruling underscores the gravity of child pornography offenses under the Protection of Children from Sexual Offences (POCSO) Act. By overturning the Madras High Court’s decision, the Supreme Court clarified that downloading, storing, and watching child pornography are punishable offenses. This landmark judgment not only reinstates criminal proceedings against offenders but also calls for legislative amendments to replace the term “child pornography” with “child sexually abusive and exploitative material” to better reflect the severity of such crimes. This ruling reinforces the commitment to safeguarding children and ensuring stringent action against those who exploit them.
Related PYQ
In the light of the Satyam Scandal (2009), discuss the changes brought in corporate governance to ensure transparency, accountability. [UPSC CSE – 2015 Mains]
Practice Question
Discuss the recent expansion of the scope of the Protection of Children from Sexual Offences (POCSO) Act by the Supreme Court in relation to child pornography. Analyze its implications for child protection and legal enforcement in India. [250 words]
Guidelines to Answer
- Introduction:
- Briefly introduce the POCSO Act and its primary objectives.
- Mention the recent Supreme Court ruling that expanded the scope of the Act regarding child pornography.
- Body:
- Explanation of the Ruling:
- Detail the specific changes or expansions made by the Supreme Court.
- Explain how these changes address gaps or issues in the previous framework.
- Implications for Child Protection:
- Discuss how the expanded scope enhances the protection of children from sexual exploitation and abuse.
- Highlight any new measures or provisions introduced for better safeguarding children.
- Legal and Enforcement Challenges:
- Analyze potential challenges in implementing the expanded provisions.
- Discuss the role of law enforcement agencies, judiciary, and other stakeholders in ensuring effective enforcement.
- Broader Impact:
- Consider the societal and cultural implications of the expanded scope.
- Reflect on how this ruling might influence future legislation and judicial decisions related to child protection.
- Explanation of the Ruling:
- Conclusion:
- Summarize the key points discussed.
- Provide a balanced view on the effectiveness of the expanded scope in achieving its intended goals.
- Suggest any further measures or reforms needed to strengthen child protection laws in India.