Critical Analysis of the legal framework on Cyber Child Sexual Abuse Material in the Indian Context

Critical Analysis of the legal framework on Cyber Child Sexual Abuse Material in the Indian Context

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Introduction

Human activities in the age of digitization have increasingly become dependent on technology, especially information technology. The Internet and the plexus of computer networks have provided an instantaneous means of exchanging and accessing information around the globe, transcending national and geopolitical boundaries. The cyberspace is a virtual space within which communications and transactions are concluded electronically. Besides having a borderless and intangible character, cyberspace is intangible in its scope and expanding exponentially in its magnitude, affluence, and political importance. 

This ‘virtual space’ has enabled people to interact with one another and provides a convenient and accessible medium to facilitate the exchange of information, ideas, and data. In today’s digital age people are influenced as well as become increasingly dependent on the Internet for entertainment, communication via electronic mails, instant messages, video chats, voice mails and messages, business transactions, banking etc. 

However, the anonymity that is accorded by the cyberspace to its users can be misused, exploited and abused by miscreants to carry out illegal and fraudulent activities. It is this category of offences that are committed in an electronic form, especially within cyberspace which has resulted in the emergence of a new species of crimes known as cybercrimes. 

Among the wide array of cybercrimes that are facilitated, organized and orchestrated within cyberspace, one such category of offence that has become increasingly prevalent in recent times owing to the ever-pervasive nature of the Internet is cyber child pornography also known as Child Sexual Abuse Material (CSAM). 

Historical Overview of Child Pornography

The existence of child pornography can be traced back to times even before the Internet became a reality. Initially, child pornography or child sexual abuse material (CSAM) was prevalent in the paper form which included images, drawings or illustrations depicting children engaging in sexual acts that were published in the form of photographs, magazines and other print media. 

During the late 1980s with the emergence of the Internet, the child pornography industry was encouraged and promoted by facilitating the production, distribution, dissemination, and possession of child sexual abuse material, which was not merely confined to paedophiles or child molesters but other individuals bearing a depraved sense of morality and rectitude. Thus, bringing about a transition from the paper to a digital medium and genesis of a new genre of cyber pornography involving children.  

Child pornography primarily involves recording the sexual abuse of a child in the form of a photograph, film, video or an audio clip. It also includes computer-generated images, pictures or animations depicting children engaging in sexually explicit acts. The Internet served as a potent tool that enhanced the demand for CSAM. The sexual abuse and exploitation of a child is undoubtedly a human right violation of that child and the Internet has expanded and diversified the scope of offences associated with child pornography. 

With an increase in the demand for child sexual abuse material, Internet has made it possible for perpetrators to easily access, distribute and possess child sexual abuse material thereby giving a boost to the illicit industry of child pornography. Given the nature of the Internet that globally connects millions of computer networks, child pornography has been made widely accessible and available to users thereby, not merely making the production of child pornography an offence but viewing, browsing, disseminating, possessing, advertising and soliciting children online for sexual purposes a punishable offence, as they are one of the many forms child pornography can assume. 

Furthermore, the Internet provides an inexpensive and anonymous platform for viewing, sharing and seeking child sexual abuse material online. Child pornography as a crime is not victimless and the element of ‘harm’ associated with viewing child sexual abuse material online cannot be ignored, thereby perpetuating the offence of child pornography. 

Every image, picture or video clip depicting a child in sexual overtones amounts to blatant violation of his or her basic human rights. Moreover, given the character of cyberspace, any content that is published or uploaded on the Internet remains within the virtual space till perpetuity. Multiple copies are generated which are freely accessed by users thereby making it a near-impossible task to erase or obliterate inappropriate material and its copies that are available on the Internet. 

Thus, a material depicting the sexual abuse of a child can persist online forever, which can be viewed, accessed, downloaded and possessed repeatedly by perpetrators for sexual gratification, the world over given the borderless nature of the Internet. Therefore, the online protection of children is an important aspect, which needs to be emphasized to safeguard and protect children from being victimized through information and communication technology (ICT) facilitated sexual offences.

Meaning and Scope of Child Pornography 

One of the most depraved and corrupt forms of obscenity is that of children being depicted in sexually explicit acts. With the advent of the Internet and advancements in new technologies, the landscape of child pornography has changed considerably. Prior to the Internet, individuals who wished to view child sexual abuse material, would need to actively seek out for it, have it delivered to their house and the format in which child pornographic content was available was mostly through magazines, videos cassettes/CDs, and photographs. 

But in present times, computers and the Internet play a predominant role in the distribution of such material. Now, it is possible to upload material onto data medium through videotapes, CD-ROMs, DVDs, external hard disk drives and USB sticks. With the emergence of these data carriers, it has become easier to spread pornographic material, because one simply needs to connect it to a computer, upload the material and disseminate and spread the content using the Internet, in complete anonymity. 

Pornography has been defined in the Oxford Dictionary as “the explicit description or exhibition of sexual subjects or activity in literature, painting, films etc. in a manner intended to stimulate erotic rather than aesthetic feelings”.1 Child pornographic material visually or graphically depicts children including both real and computer-generated images or pictures of children under the age of eighteen years engaged in actual or simulated sexual activity. 

The impact and role that the Internet has had and continues to have in the production, dissemination, and collection of child pornographic material are tremendous. Child pornography is relatively new as opposed to child abuse, which has existed since time immemorial, like any other crime. However, child pornography is often regarded as a subset or a manifestation of child abuse. 

Child pornography involves visualizing images, pictures or video clips of children engaging in sexually explicit acts and lewd activities, where the child may not be hurt physically but immense psychological, emotional and reputational damage may be caused to the child in the process.

There are some who opine that “child pornography is comparatively worse” and it “poses an even greater threat to the child victim than does sexual abuse or prostitution”.2 The possession and viewing of child pornography also tantamount to an offence and was constitutionally forbidden and outlawed.3

Moreover, child abuse takes place in secrecy and this gives an opportunity to the predator to continue with the abuse and in the process also manipulate the victim to keep the abuse a secret. This results in the continuation of such activity and the child being victimized repeatedly. It is this nature of secrecy of child abuse that not only makes its detection difficult but also punishing the perpetrator an equally arduous task. 

The Internet has aggravated the instances of child pornography like other cybercrimes, by expanding and proliferating the amount of material available, increasing the efficiency of its distribution and the ease of its accessibility. The main reasons behind this are:

  • the vast global accessibility to child porn material; 
  • the instant availability of material;
  • the anonymity of child porn offender; 
  • high digital quality images which are easy to store;
  • there are a variety of formats like pictures, videos, and sound;
  • there is also a potential for “real-time and interactive experiences”;
  • composite or virtual images can be created by modifying digital images (morphing)

Therefore, child pornography poses serious concerns within cyberspace and to the society at large.

Child Pornography and the Information Technology Act, 2000

In relation to the Internet, one of the most controversial yet pertinent questions that has arisen in recent times is how Internet child pornography should be regulated? The widespread availability of child pornographic content on the Internet has caused a sense of panic among the government, law enforcement bodies like the police, prosecutors and judges along with the media in general. There have been numerous attempts made by the government and law enforcement bodies to limit the availability of pornographic content on the Internet, the world over.

In India, a country with a deep-rooted religious ethos and moral standards, lewd and vulgar human conduct is looked down upon and disregarded. For the longest time, there was no law, which prescribed a separate provision to criminalize child pornography, though obscenity was dealt under Section 292 and 293 of the Indian Penal Code, 1860. 

With technological developments and the ever-increasing boundaries of the Internet, child pornography started making its way into Indian homes. Therefore, there was a need to curb this menace and the Information Technology (Amendment) Act, 2008 filled this vacuum existing within the legal framework by inserting Section 67B4 which differentiates between “mainstream pornography” and “child pornography”. Section 67B prescribes “punishment for publishing or transmitting material depicting children in sexually explicit acts, etc. in electronic form.” The section reads as under: “Whoever-

a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in a sexually explicit act or conduct; or

b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or

c) cultivates, entices or induces children to online relationship with one or more children for and on a sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or

d)  facilitates abusing children online, or

e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of a second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.”

However, the provision also prescribes certain exceptions, which reads as follows: 

      “Provided that the provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form-

       (i)        the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

      (ii)        which is kept or used for bonafide heritage or religious purposes.”

The aforesaid section is exhaustive in its own right and deals with the offence of child pornography in the electronic form. It describes what constitutes child pornography. The provision not only makes publication or transmission but also the creation of, browsing and downloading of child pornographic content, an offence. Furthermore, the section not only provides grave corporal punishment, but pecuniary punishment is also heavy, of up to 10 lakhs in both convictions. 

Child pornography being different from mainstream pornography is connected with social issues and thus it receives stringent legal treatment even in countries like the US and the UK. The Internet has provided paedophiles and child sexual offenders with an anonymous agency to distribute and circulate child sexual abuse material (CSAM). Therefore, in addition to legal reforms, other innovative strategies are required to combat online child pornography.

Moreover, in view of India’s international obligation and as a signatory to the Convention on the Rights of the Child (CRC) and ratification of the Optional Protocol on the Sale of Children, Child Prostitution and Child Pornography the introduction of Section 67B was long overdue in the statute book. The provision on child pornography is stringent, as it not only constitutes ‘publishing’ or ‘transmitting’ of pornographic content involving children an offence, but also its collection, online viewing, downloading, advertising, exchange, and distribution an offence.

Critical Analysis of Section 67B of the Information Technology Act, 2000

Every crime comprises certain basic elements and the existence of these elements must be proved in a court of law to obtain the conviction of the accused. Intention, motive, mens rea, knowledge are some mental elements which play a crucial role in criminal law. “Criminal intention” means the purpose or design of doing an act that is forbidden by criminal law and has no just cause or excuse behind it. Thus, an act is considered to be intentional if it has existed in the form of an idea before it has been acted out or in other words exists in fact. 

Any offence that is made dependent on the proof of intention, the Court must have proof of facts, which justifies the existence of the intention. However, the intention is usually inferred from conduct and the probable effect of the conduct. The burden lies on the prosecution to prove guilty intention. In-State of Maharashtra v. M.H. George5 it was held that “criminal intent as a psychological fact has to be proved even in regard to offences under the Special Acts unless it is specifically ruled out or ruled out by necessary implication.” 

A well-known principle of criminal jurisprudence is that of mens rea. It is an English criminal law concept wherein; a person is not guilty of committing a crime if the mind of the person is innocent. Therefore, to constitute a crime both the intent and the act must coexist and this notion has been embodied in the legal maxim actus non facit reum, nisi mens sit rea. Before a crime is actually committed, prima facie there must be a mind at fault.

Therefore, the ‘state of mind’ is crucial for proving any crime. If the mental element is proved to be absent for any conduct that is being alleged as a crime, then the crime is not committed. However, the above maxim cannot be applied generally to all statutes and thus it is important to understand the object of each Act under consideration to ascertain how far the intention is present and relates to the offence done. 

Therefore, it is in this background that an analysis of Section 67B, which is a penal provision under the IT Act reveals that the mental element of the intention to commit an offence is completely absent from the said provision. The provision prescribes acts or conducts the commission of which would amount to the offence of child pornography, in the electronic form. 

However, the absence of mens rea, which is a crucial element involved in the commission of any crime makes the provision weak and imposes a greater burden on the prosecution to prove the presence of a guilty mind prior to the commission of any of the acts enumerated under the section to ensure the conviction of the accused. 

Moreover, a person should have an intention to access and enter a child pornography site and have the knowledge of finding such material there. Therefore, the intention to commit an offence must be inferred from the recurrent nature of the act or where the offence is committed in return for payment.

Section 67B of the IT Act criminalizes five instances of online child pornography, clause (a) and (e) are generic in nature whereas clause (b), (c) and (d) are specific. Clause (a) of Section 67B takes in to account the use of computer resources and communication devices for all instances of child pornography. It criminalizes the “publication or transmission” of any material depicting children in sexually explicit acts. This takes into account material in the form of text, image, audio or video clips. Moreover, even the ‘attempt’ to publish or transmit material that depicts children involved in sexually explicit acts is an offence under the provision. 

Clause (b) of Section 67B takes in to account all cases of child pornography wherein a user actively (and not passively) uses a computer resource and communication device to “create text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes any material in any electronic form depicting children in an obscene or indecent or sexually explicit manner.” 

A very crucial element of ‘possession’ of child sexual abuse material by a person in his computer system, external hard drive or on the mobile phone and other communication devices has not been included within the scope of this provision. In effect, the absence of ‘possession’ of child sexual abuse material in the electronic form leaves out a large category of individuals from the purview of this section, who are otherwise actively involved in the illicit industry of child pornography. 

The possession of child sexual abuse material is the most dominant form of propagating and facilitating the sexual abuse of children for pornographic purposes. Individuals in possession of child sexual abuse images, video or audio clips further disseminate and upload such content via the Internet within the cyberspace, thereby supplying the demand for such content and also encouraging the consumption of child pornography. 

The Indian law on child pornography does not specifically mention and deal with “pseudo-photographs” as has been the case under the child pornography laws in the UK. In the UK, the Protection of Children Act, 1978 was amended by the Criminal Justice and Public Order Act, 1994 to incorporate and define “pseudo-photographs”. Pseudo-photograph is an image that is created by computer graphics, which appears like a photograph.6

Clause (c) of Section 67B includes within its scope the occurrence of online grooming of children by online predators for sexual purposes. This is done by cultivating, soliciting or enticing a child to engage him/her in sexually explicit acts or conducts, through social networking websites, gaming websites and chat rooms. However, the terms ‘cultivating’, ‘enticing’ and ‘inducing’ have not been defined under the Act and one would have to look into the peculiar facts and circumstances of a case to arrive at a conclusion. Therefore, here again, the mental element of a ‘guilty mind’ is missing from the scope of the offence. 

Online grooming typically involves befriending a child and developing an emotional bond of trust and confidence with a child, by a person who takes advantage of his/her anonymity, which cyberspace extends. The perpetrator misrepresents his/her age and gender (sometimes pretending to be someone of a similar age group) with an objective to sexually abuse the child. The incidents of child grooming take place online through public chat rooms and various social networking platforms. However, the term “grooming” has not been used explicitly under clause (c) of Section 67B. 

Clause (d) of Section 67B includes all instances of “facilitating” or providing assistance to online sexual abuse of children. Clause (e) of Section 67B takes into account, recording the abuse done by oneself upon a child or others indulging sexually with children. Such recording can be in the form of a recorded text, image, audio or video recording. A mere recording of sexually-explicit acts involving children is enough to attract this provision. Whether such a recording has been transmitted or published is immaterial. The term ‘recording’ means capturing a sexually explicit act on a recording or a communication device.  

However, there are certain exceptions to which the provisions of Section 67, 67A and 67B are not applicable and these include, the publication of any book, pamphlet, paper, writing, drawing, painting representation or figure in an electronic form which is justified for the public good or is in the “interest of science, literature, art or learning or general concern.”7

Bonafide heritage material or material which is used for religious purposes is also excluded from the scope of Section 67B.8 However, screening video graphs and photographs of sexually explicit acts involving children, making a pornographic video or MMS clips and distributing such material in an electronic form through mobile phones and other communication devices through Internet all come within the sweep of Section 67B.9

But the proviso fails to draw a distinction between Section 67A and Section 67B which deal with two distinct genres of pornography, i.e., adult and child pornography respectively. Both these forms of pornography involving different subjects, an adult in one and a minor in the other are judged by different standards of morality and ethics. Adult pornography, when viewed in private, does not amount to an offence and is protected by the freedom of expression. However, the depiction of a minor in a sexually explicit act or conduct and viewing of such material, in any form is considered an offence world over and thus cannot be subjected to any exception whatsoever. 

Furthermore, despite having a comprehensive legal framework to deal with online obscenity and child pornography there are some striking deficiencies in the law at hand. The term ‘pornography’ is not defined in any statute book and this has resulted in unaddressed and ignored issues associated with child pornography, such as child pornography depicted through animations, morphed images of children depicted in sexually explicit acts, virtual pornography, poser pornography and crimes against women and children that are perpetuated and fueled by pornography. 

There also appears to be a big lacuna when it comes to ensuring proper psychosocial counselling and rehabilitation of victims and spreading awareness among children and their parents regarding online child pornography. The various aspects of pseudo photographs, non-photographic pornographic images of children, fantasy images, computer-generated images (CGI), Graphics Interchange Format (GIF) and virtual pornography remain unacknowledged by the legislation. 

Therefore, the Information Technology Act, 2000 has not been effective in dealing with child pornography and crimes associated with pornography like revenge porn, defamation, stalking, sexual harassment, and online grooming. However, the legislature subsequently incorporated and dealt with these issues under the Protection of Children from Sexual Offences (POCSO) Act, 2012, which is model legislation enacted to protect children from sexual offences, viz., sexual assault, sexual harassment, and pornography. 

Furthermore, Section 67C10 provides for “preservation and retention of information by intermediaries”. Thus, it imposes a responsibility on the intermediaries to preserve and retain such offending material. Therefore, intermediaries play a pivotal role in the availability and hosting of online child pornography. 

Critical Analysis of Provisions under the POCSO Act, 2012

In addition to the substantive provision dealing with online child pornography under Section 67B of the IT Act, the POCSO Act deals with the use of children for pornographic purposes and prescribes punishment for the same Under Chapter III. The POCSO Act criminalizes the use of children for pornographic purposes, both online as well as offline. 

Section 1311 of the POCSO Act prescribes the use of a child for pornographic purposes. Therefore, the online portrayal of a child through the Internet or in any other electronic form for sexual gratification is known as child pornography. The ‘use’ of a child for pornography under this provision involves the sexual exploitation and abuse of a child during the process of production, preparation, offering, transmission, publication, and distribution of child sexual abuse content. Section 13 of the POCSO Act criminalizes the act of using a child for pornographic purposes by any person or engaging with a child in sexual activities on any media. 

Therefore, any person who seeks sexual gratification by representing the sexual organs of a child or engages a child in a real or simulated sexual act or represents a child in an indecent or obscene manner, in any form of media, including via television programmes or advertisements or through the Internet or in any other electronic form, shall be guilty of the offence of child pornography. The offence prescribed under Section 13 of the POCSO Act is a cognizable and non-bailable offence, the punishment for which is provided under Section 14 of the Act.  

Section 13 also takes in to account ‘simulated sexual acts’ involving a child. This includes within its scope animations, computer-generated images and fantasy pornography depicting children in sexually explicit acts. This aspect of online child pornography has not been dealt with under Section 67B of the IT Act. Considering the rapid technological developments, this new category of morphed, animated, virtual and computer-generated images and video clips should be included within the scope of Section 67B of the IT Act to bring the creators, producers, and consumers of such content within the purview of the law. 

Section 14 prescribes punishment for using a child for pornographic purposes. The section penalizes the acts that are covered by Section 13 i.e., anyone who uses a child for pornographic purposes shall be punished with imprisonment for a term which may extend up to 5 years and a subsequent conviction can attract imprisonment up to 7 years and fine. 

Where the accused directly participates in a pornographic act and commits any of the offences referred to in section 3 i.e., “penetrative sexual assault”, Section 5 i.e., “aggravated penetrative sexual assault”, Section 7 i.e., “sexual assault” or Section 9 i.e., “aggravated sexual assault” is punished proportionately.12

Penetrative sexual assault of a child by a person while participating in a pornographic act can attract a punishment of minimum 10 years and may extend to life imprisonment and also fine, aggravated penetrative assault can attract rigorous imprisonment for life and fine, a person sexually assaulting a child may be punished with imprisonment which may extend to 8 years and fine, whereas aggravated sexual assault attracts imprisonment for not less than 8 years and may extend to 10 years and also fine. 

Therefore, the POCSO Act has clearly categorized the various forms of sexual offences that a child may be subjected to, who is engaged or exploited for pornographic purposes and prescribes punishment that is commensurate with the gravity and heinousness of the offence. 

On the contrary, the IT Act fails to draw a distinction or categorize the different forms of sexual offences that a child may be subjected to when exploited for pornographic purposes. The IT Act prescribes a generalized punishment if any of the acts enumerated under clause (a) to (e) under Section 67B are committed by the accused. The IT Act does not take into consideration the degree of offence as is the case under Section 14 of the POCSO Act, which penalizes the accused based on the severity of the offence committed by him against a child while being directly involved in a pornographic act. 

Section 15 of the POCSO Act prescribes punishment for the storage of pornographic material involving a child. The section reads as follows: “any person who stores, for commercial purposes any pornographic material in any form involving a child shall be punished with imprisonment of either description which may extend to three years or with fine or with both.” 

Therefore, storing child sexual abuse material in any form for commercial purposes, which includes both offline and online forms of storage is penalized under the POCSO Act. The storage of child pornographic material in the electronic form would include within its scope, data that is stored in the computer system, internal or external data storage drives, mobile phones, and other communication devices. 

Therefore, the key ingredients of the law that must be satisfied for a conviction of child pornography under Chapter III of the POCSO Act are:

  • Using a child for pornographic purposes for sexual gratification, through either representing the sexual organs of a child or using a child for sexual acts in real or simulated form or representing the child in an obscene or indecent manner;
  • Creating child pornography for commercial purposes or personal use or storage of child pornographic material;
  • The ‘use’ of a child includes within its scope the preparation, production, publication, offering, facilitation, and dissemination of child sexual abuse material. 

The POCSO Act also deals with the offence of sexual harassment upon a child. Sub-section (iii), (iv), (v) and (vi) of Section 11 comprises of elements of child pornography. These provisions discuss the use or threat of use of a child for pornographic purposes. The section reads as follows: “A person is said to commit sexual harassment upon a child when such person with sexual intent (iii) shows an object to a child in any form or media for pornographic purposes; or (iv) repeatedly or constantly follows or watches or contacts a child either directly or through electronic, digital or any other means.” 

Thus, showing any object, which may include images, pictures, videos or audio clips having sexual overtones to a child for pornographic purposes amounts to sexual harassment of a child. When a person follows or watches a child repeatedly or tries to contact a child through electronic or digital means like social networking sites, public chat rooms or online gaming sites or through mobile phones and other communication devices it reflects the intention of that person to sexually harass the child. 

Whenever there is a threat of depicting a child in a sexually explicit act, a person can be booked under Section 11(v) of the POCSO Act. Sub-section (v) reads as follows, “threatens to use, in any form of media, a real or fabricated depiction through electronic, film or digital or any other mode, of any part of the body of the child or the involvement of the child in a sexual act.”13

Therefore, this provision includes within its scope both real as well as fabricated depiction, which means morphed, animated or computer-generated images of a child engaging in sexually explicit acts or the child’s body parts. As previously discussed, morphed images, fantasy pornography, computer-generated images of a child engaging in sexually explicit acts are not included within the scope of Section 67B of the IT Act. 

Where a person grooms a child for pornographic purposes the provision under sub-section (vi) will get attracted. Therefore, Section 11(vi) deals with the offence of ‘online grooming’ wherein a child is enticed and solicited to indulge in sexual conversations and eventually engage in sexually explicit acts. 

The provision reads as follows, “A person is said to commit sexual harassment upon a child when such person with sexual intent, (vi) entices a child for pornographic purposes or gives gratification therefor.”14 Clause (c) of Section 67B of the IT Act deals with the offence of online grooming. However, both the sections under the IT Act as well as the POCSO Act does not expressly use the term ‘online grooming’. The offences under Section 11 are cognizable and bailable. Section 12 prescribes punishment for the offences prescribed under Section 11 of the POCSO Act, for a term of imprisonment up to three years and fine. 

Therefore, the POCSO Act provides a comprehensive legal framework to protect children from the offence of pornography among other offences of assault and harassment of sexual nature. At every stage of the judicial process, the interests of the child are safeguarded. This is done by incorporating “child-friendly mechanisms for reporting, recording of evidence, investigation and speedy trial of offences through designated special courts.”15 Therefore, the substantive law on child pornography has been dealt with more exhaustively under the POCSO Act as compared to Section 67B of the IT Act.

Procedural Provisions under the POCSO Act, 2012

The POCSO Act also lays down important procedural safeguards to secure the rights and interests of the child at every stage of the judicial process. The Act lays down detailed procedure for reporting cases, recording the statement of a child and procedure and powers of Special Courts and recording of evidence. 

  • The Act makes the reporting of offences by any person, which may also include the child, mandatory under Section 19(1) of the Act. Therefore, the POCSO Act prescribes the ‘mandatory reporting’ of offences under the Act. Thus, any person, including the child who is under an apprehension that an offence is likely to be committed under the Act or has the knowledge of any offence that has been committed, is under a legal obligation to provide information to either the Special Juvenile Police Unit or to the local police.
  • Therefore, any person including a child who is under an apprehension that an offence under Section 13 of the POCSO Act is likely to be committed i.e., apprehends that a child may be used for pornographic purposes or has the knowledge that a child has been sexually exploited for pornographic purposes shall mandatorily report such an incident to the concerned authorities.
  • The “Special Juvenile Police Unit” or the local police must report the matter to the Child Welfare Committee and the Special Court or to the Sessions Court where a Special Court has not been designated, within a period of 24 hours and also mention the need for care and protection of the child.  
  • The POCSO Act also makes it mandatory for the staff of media, hotels, lodges, hospitals, clubs, studios or facilities providing photography services to inform the Special Juvenile Police Unit or the local police on coming across any material which depicts sexual exploitation of a child including material which is pornographic or sexually relates to a child or obscenely represents a child.
  • Any person who fails to report or record an offence under Section 19(1) or Section 20 of the Act shall be punished with imprisonment, which may extend to six months or fine or both.  The failure to report an offence under the Act, which has been made mandatory, attracts penal consequences. 
  • The provision on child pornography under the IT Act does not prescribe any procedure for reporting cases of online child pornography, let alone mandatory reporting of offences involving the use of a child for pornographic purposes.  
  • Section 28 of the POCSO Act prescribes the establishment of Special Courts in each district to ensure speedy trial of offences under the Act. A Court of Session is designated as a Special Court.
  • A Special Court also has the jurisdiction to try offences under Section 67B of the IT Act which relates to the publication or transmission of material depicting children in sexually explicit acts or conduct or any material which facilitates online abuse of children. Therefore, a Special Court constituted under the POCSO Act has the jurisdiction to try any offence of child pornography under Section 67B of the IT Act.
  • Prosecution of any offence under the POCSO Act takes into account the “culpable mental state” i.e., intention, motive, knowledge of a fact, belief, a fact or a reason to believe, of the accused and the Special Court presumes the existence of such mental state. 
  • The burden of proof lies on the accused to prove the absence of such mental state in relation to the offence with which the accused is charged and prosecuted.  Therefore, the POCSO Act ensures that a child is under no pressure to prove that the crime took place.
  • The Special Court should record the evidence of a child within a period of 30 days of taking cognizance of the offence. Any delay has to be recorded in writing. The trial should be completed within a period of one year from the date the Special Court takes cognizance of the offence.
  • The Act also prescribes the in-camera trial of cases by the Special Courts and requires the presence of parents of the child or any other person whom the child trusts.  

Therefore, the POCSO Act provides a comprehensive procedural legal framework to ensure a speedy trial of sexual offences against children. The POCSO Act is a gender-neutral law that takes cognizance of crimes that are sexual in nature, committed against children who are under the age of 18 years. 

Moreover, the discretionary powers of the Courts cannot be exercised in POCSO cases. Thus, the term of imprisonment cannot be reduced to a lesser term than the minimum term that is prescribed under the Act. Therefore, the POCSO Act safeguards the interest of a child at every stage of the judicial process. 

The Protection of Children from Sexual Offences (Amendment) Act, 2019

The Protection of Children from Sexual Offences (Amendment) Bill 2019 was introduced in Rajya Sabha on July 18, 2019, and was subsequently passed by both Houses of Parliament. The Bill received the assent of the President on August 5, 2019. The POCSO (Amendment) Act, 2019 brings about significant amendments in the POCSO Act, 2012. 

The 2019 Amendment Act enhances the punishment for offences related to using a child for pornographic purposes. The following amendments have been proposed:

  • Under the principal Act, the use of a child for pornographic purposes may attract imprisonment for a maximum term of 5 years. Whereas, the Bill proposes a minimum term of 5 years. 
  • No changes have been proposed in the case of the use of a child for pornographic purposes resulting in “penetrative sexual assault”, which attracts imprisonment for a minimum term of 10 years and a maximum of life imprisonment. 
  • The use of a child for pornographic purposes resulting in “aggravated penetrative sexual assault” under the principal Act prescribes life imprisonment whereas, the Bill proposes imprisonment for a minimum term of 20 years and a maximum of life imprisonment or death. 
  • The use of a child for pornographic purposes resulting in “sexual assault” under the principal Act can attract imprisonment for a minimum term of 6 years and a maximum of 8 years. Whereas, the Bill proposes a minimum term of 3 years and a maximum term of 5 years. 
  • A person who uses a child for pornographic purposes resulting in “aggravated sexual assault” under the principal Act may be punished with imprisonment for a minimum term of 8 years and a maximum of 10 years. Whereas, the Bill proposes to amend this to a minimum of 5 years and a maximum of 7 years. 

Therefore, the 2019 Amendment Act prescribes the death sentence for offenders who are found guilty of using a child for pornographic purposes and resulting in aggravated penetrative sexual assault of the child. There has been a significant rise in the incidents of child sexual abuse and the behaviour of abusers towards the victim has been barbaric and inhuman. Children have always been an easy target owing to their impressionable age, vulnerability, and inexperience. Therefore, the gruesomeness of the act meted out against children is also a result of an unequal power equation. 

In order to deter the rise in the sexual abuse of children in the country, a strong need was felt to establish stringent measures. Therefore, the punishment for various offences has been enhanced by the 2019 Amendment Act so as to have a deterrent effect and ensure the safety and security of a child. The Act also empowers the Central Government to make rules prescribing the manner in which pornographic material involving a child in any form, should be deleted, destroyed or reported by the concerned authorities. 

The 2019 Amendment Act amends Section 15 of the principal Act, which prescribes punishment for storage of pornographic material involving a child. Under the principal Act the commercial use of stored pornographic material by any person is punishable with imprisonment up to 3 years, or fine, or both. The 2019 Amendment Act enhances the term of imprisonment between 3 to 5 years, or fine, or both for the first conviction and in case of second conviction imprisonment between 5 to 7 years and also be liable to fine. More importantly, the amendment has introduced the term “possesses” in the provision, which will now also cover those individuals who are in possession of pornographic material involving a child, in any form. 

The 2019 Amendment Act further adds two other offences under Section 15 for the storage of pornographic material involving children. These include:

  • Failure to delete or destroy or report any stored pornographic material or any pornographic material that is in possession of any person, involving a child; 
  • Transmission or propagation or distribution of stored pornographic material or any pornographic material that is in possession of any person, involving a child, except for the purpose of reporting. 

Therefore, the amendments which have been incorporated goes a step further by including the “possession” of child pornographic material within its scope, which is missing under the principal Act and also the Information Technology Act, 2000. Possession of pornographic material in any form facilitates further distribution and circulation of such material thereby reinforcing the demand-supply chain and endorsing the consumption of child pornography. 

The deletion, destruction and reporting of child pornographic material is crucial for removing such material permanently from cyberspace and bringing an end to its further circulation and dissemination. Moreover, a child is repeatedly victimized every time someone views the pornographic material involving the child. Therefore, the 2019 Amendment Act makes the law more stringent to safeguard the rights and interests of children and to enable them to lead a dignified childhood. 

Conclusion and Suggestions

The phenomenon of child pornography cannot be studied in isolation and separate from sexual violence and abuse against children. There is an intricate association between child sexual abuse and exploitation images and sexual violence against children. Therefore, attempts to combat child pornography should take in to account the sexual violence to which children are subjected, the manifestations of which are sexual abuse images and videos. It will not be prudent on the part of the State to protect and safeguard children by an approach that is repressive and tyrannical. 

Protection of children against sexual abuse ought to focus on prevention of offences, expeditious identification of victims, robust investigation machinery to identify and prosecute the sexual offender and those involved in the entire chain starting from making child pornography to browsing child pornography content online and also providing health care and assistance to child victims. This can be achieved through an interdisciplinary approach and cooperation between governmental bodies, non-governmental actors and the private sector. 

Therefore, in the backdrop of the above discussion following conclusions can be drawn with regard to child pornography:

  • Child pornography is one of the many manifestations of sexual violence against children. Child pornography always occurs in association with other forms of sexual conduct like human child trafficking, prostitution or online grooming of children. Therefore, child sexual abuse material (CSAM) depicts sexual violence against children represented through images or video clips. 
  • Children are sexually exploited for commercial purposes and child pornography is one such industry that is hugely profitable and flourishing commercially owing to the ease of access to such material online facilitated by the Internet and rapid developments in Information and communication technologies. Therefore, strategies to combat child pornography should focus on safeguarding and protecting children against “sexual” violence. 
  • The technology, perpetrator and victims involved in child pornography differ from case to case. Technology includes within its scope ICT that facilitates the production, possession and distribution of CSAM online. However, the perpetrators may form a heterogeneous group wherein some individuals might only indulge in viewing child pornography while others might themselves sexually abuse children and produce images or clips of such acts and further distribute and upload such content online for others to view and access. 
  • The age group of the child victim determines the nature of the material and the circumstances under which it was produced. Therefore, policies and strategies should take in to account the diversity of child victims, offenders and child sexual abuse material to effectively tackle child pornography. 
  • With the advent of the Internet and rapid developments in technology, child pornography predominantly exists in the digital form. However, sexual violence against children continues to exist in the physical world as well. The Internet has given a new dimension to sexual violence exhibited against children in the form of online grooming, child sex tourism, sexting and child pornography that have gained prominence in the past decade. 
  • Online sexual offenders and potential victims are also users of the Internet and ICT, which facilitate the commission of sexual crimes against children. Moreover, for children the cyberspace and the real world are not separate entities, one is the extension of the other. Therefore, strategies and policies should consider both the real and the virtual worlds while devising measures to tackle child pornography. However, legal, research and technical experts should keep abreast of the progress and growth occurring in the digital realm.
  • Furthermore, the occurrence of child pornography is not restrained by time or space. Sexual abuse and exploitation of children have always taken place even when the Internet did not exist. Child sexual abuse images have been produced and viewed since the time photography has prevailed. However, with technological developments child sexual abuse material, which existed in the non-electronic form, can now be made available and viewed online and it can remain in cyberspace indefinitely. 
  • The cyberspace is an intangible and non-physical space which provides a safe haven to perpetrators who can initiate contact with potential child victims and upload, browse, access, advertise, trade and download child sexual abuse images or clips operating from any part of the world and in different time zones. This reflects the global nature of the problem and calls for international efforts and cooperation.
  • Lastly, given the global nature of child pornography, it is not possible for law enforcement alone to effectively tackle this problem. With technological advancements and easy access to the Internet, there has been a proliferation in the number of perpetrators and the volume of CSAM available online cannot be tackled alone by the criminal law system. The traditional criminal justice system is not well equipped to effectively process and approach this multifaceted problem. 

Therefore, it requires a technologically sophisticated and futuristic approach on part of the law enforcement agencies and other State actors to combat the menace of child pornography and safeguard children against sexual abuse and exploitation. Moreover, the legal framework operating in India is inadequate and not the only perspective through which sexual violence against children for pornographic purposes and its various manifestation should be approached.

Endnotes

1.  https://en.oxforddictionaries.com/definition/pornography

2.  New York v. Ferber, 458 U.S. 747, 759 (1982) available at https://cdn.loc.gov/service/ll/usrep/ usrep458/usrep458747/usrep458747.pdf

3.  Osborne v. Ohio,495 U.S. 103, 108(1990) available at http://cdn.loc.gov/service/ll/ usrep/usrep495/usrep495103/usrep495103.pdf

4.  Inserted by virtue of s. 32 of the Information Technology (Amendment) Act, 2008 (10 of 2009).

5.   AIR 1965 S.C. 722. 

6.   The Criminal Justice and Public Order Act, 1994, s. 84(7) available at https://www.legislation. gov.uk/ukpga/1994/33/section/84

7.  The Information Technology Act, 2000 (Act 21 of 2000), Proviso (i) to s. 67B.

8.  Id.Proviso (ii) to s. 67B. 

9.  https://www.eurasiareview.com/03052017-child-pornography-in-digital-age-and-the-law-in-india-analysis/

10.  “Preservation and retention of information by intermediaries- (1) Intermediary shall preserve and retain such information as may be specified for such duration and in such manner and format as the Central Government may prescribe. (2) Any intermediary who intentionally or knowingly contravenes the provision of sub-section (1) shall be punished with imprisonment for a term which may extend to three years and also be liable to fine.”

11.   “Whoever, uses a child in any form of media (including programme or advertisement telecast by television channels or internet or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes- (a) Representation of the sexual organs of a child; (b) Usage of a child engaged in real or simulated sexual acts (with or without penetration); (c) the indecent or obscene representation of a child, shall be guilty of the offence of using a child for pornographic purposes. Explanation- For the purposes of this section, the expression “use a child” shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of pornographic material.”

12.  The Protection of Children from Sexual Offences Act, 2012, s. 14(1), (2), (3), (4) & (5). 

13.  Id.s. 11(iii), (iv) & (v).

14.   Id.s. 11(vi). 

15.  Ministry of Women and Child Development, Guidelines for the Use of Professionals and Experts under the POCSO Act, 2012, September 2013 available at https://wcd.nic.in/sites/default/files/POCSO-ModelGuidelines.pdf


Anusuya Mukherjee-DU

Anasuya Mukherjee

Author

Anasuya hails from Delhi University and she spends most of her time in Reading, Practising Yoga and Working towards community animal welfare. Her Interest area lies in Intellectual Property Law. For any clarifications, feedback, and advice, you can reach her at anasuyamukherjee86@gmail.com

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