In the S. Harish v. Inspector of Police (2020) case, the Madras High Court has decided that downloading child pornography is not illegal under Section 67B of the Information Technology (IT) Act, 2000. The Kerala High Court established a precedent that the court referenced, holding that viewing pornography in private settings does not violate Section 292 of the Indian Penal Code (IPC).
Following an investigation and recognition by the High Court under Section 14(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and Section 67B of the IT Act, 2000, the police filed the final report.
What is the 2012 POCSO Act?
Following India’s 1992 adoption of the UN Convention on the Rights of the Child, the POCSO Act was passed.
The Act defines a child as any individual under the age of eighteen. The purpose of this special legislation is to address the crimes of sexual exploitation and sexual abuse of children that were either not specified clearly or were not sufficiently punished. The severity of the offence determines the sentence under Act 2. In an effort to discourage offenders and stop similar crimes against children, the Act was further examined and changed in 2019 to include harsher penalties, including the death sentence, for sexual offences committed against minors.
The POCSO Rules 2020 have also been announced by the Indian government.
- Following the registration of the FIR, the Special Court may, pursuant to Rule 9 of the POCSO Rules, grant temporary relief or rehabilitation for the child’s needs. This payment is deducted from any ultimate compensation that may be due.
- The Kid Welfare Committee (CWC) is authorised by the POCSO Rules to assign a support person to help the kid during the course of the investigation and trial. The child’s best interests, including their physical, emotional, and mental health, are the support person’s responsibility.
Gender-Neutral Characteristic:
- Regardless of the victim’s gender, the Act acknowledges that sexual abuse can happen to both boys and girls and that it is illegal. This is consistent with the ideas that laws shouldn’t discriminate against women and that all children have the right to be shielded from sexual abuse and exploitation.
Ease of Reporting Incidents: Since non-reporting has been designated a particular criminal under the Act, there is now enough public awareness to report incidents of sexual exploitation of minors by both persons and institutions. Because of this, it has become more challenging to conceal crimes against minors.
Explicit Definition of Terms: In contrast to the IPC’s abstract definition of “outraging modesty of a woman,” the offence of “sexual assault” has been defined explicitly (with a higher minimum sentence), and the storage of child pornography material has been created a new offence.
Immediate Payment of Special Relief: In accordance with the POCSO Rules, the CWC may recommend that funds from the District Legal Services Authority (DLSA), the District Child Protection Unit (DCPU), or funds maintained under the Juvenile Justice Act, 2015, be used to pay for basic necessities like clothing, food, and transportation right away. The payment must be made within a week of the CWC’s recommendation.
What Concerns Are Raised by the Most Recent Madras High Court Decision?
Different Interpretation of Section 67B: The High Court held that in order for an offence to be committed, the accused must have published, transmitted, or created material depicting children in sexually explicit acts or conduct. However, the facts of the investigation are sufficient to draw the application of Section 67B(b) of the IT Act, 2000. As a result, the High Court made its decision without fully analysing Section 67B or reading into Subclause (b), which explicitly outlines the accused’s act.
Incomplete Citation of the Kerala High Court’s Decision:
Without providing specifics, such as the case’s title or year, the Madras High Court cited a precedent in which the Kerala High Court addressed the application of Section 292 of the IPC and determined that viewing pornographic images or movies by oneself was not illegal.
• Child pornography cases, including the one being considered, are not covered by the ratio of this case.
Negligence of Section 67B’s Constitutional Validity: The Kerala High Court’s 2023 ruling in Aneesh v. State of Kerala did not involve child pornography. The Supreme Court of India and the Kerala High Court have both ruled that viewing adult pornography in private is not illegal under Section 292 of the IPC, but downloading sexually explicit content for children is unquestionably illegal under the IT Act. • Section 67B(b) has not yet had its constitutionality contested or its provisions declared unconstitutional.
Over-reliance on Section 482 of the Criminal Procedure Code (CrPC): The Madras High Court annulled the court proceedings and prevented abuse of the court process by using its inherent authority under Section 482 of the CrPC.
In State of Haryana vs. Bhajan Lal (1992), the Supreme Court established guidelines for the exercise of powers under Section 482 of the CrPC (or extraordinary powers under Article 226). One of these guidelines states that such powers may be used in situations where the accusations made in the FIR do not, on their face, constitute an offence or establish a case against the accused.
Which laws govern the various forms of child pornography?
The IT Act of 2000’s Section 67B contains five subclauses that address various topics, including: (a) publishing or transmitting content that shows children engaging in sexually explicit acts or conduct; (b) acts such as downloading child pornography; (c) encouraging, luring, or coercing children into [an] online sexually explicit relationship; (d) facilitating child abuse online and subclause; and (e) recording abuse or a sexually explicit act with children.
The POCSO Act of 2012, Section 14:
According to Subsection 1, anyone found guilty of using a child or children for pornographic purposes faces a minimum sentence of five years in prison, a fine, and, in the event of a second or subsequent conviction, a minimum sentence of seven years in prison and a fine.
Subsection 2 states that anyone who uses a child or children for pornographic purposes in accordance with subsection (1) and engages in any of the offences listed in sections 3, 5, 7, or 9 by actively taking part in those seven pornographic acts will also be punished for those offences under section 4.
What Steps Are Needed to Address the Issues?
Following the Comprehensive Legal Framework: The IT Act’s Section 67B, in conjunction with its associated Sections 67, 67A, and Section 14 of the POCSO Act, 2012, provides a comprehensive legal framework for dealing with child pornography crimes. The intention to prevent the sexual exploitation of minors online is shown in the inclusion of particular restrictions.
▪ The role of the National Crime Records Bureau: o In accordance with a partnership with the American National Centre for Missing & Exploited Children, the Ministry of Home Affairs’ National Crime Records Bureau (NCRB) routinely receives geotagged 8 CyberTipline reports in order to bring charges against individuals who upload child sexual abuse materials (CSAM) from any location in India.
This should also include protecting and maintaining the victims’ children’s privacy and physical integrity, and it shouldn’t be publicly posted on the internet.
▪ Terminology Change: To more accurately convey the nonconsensual nature of the content, proponents propose using “child sexual abuse materials” (CSAM) in place of “child pornography.” This change in wording will highlight the gravity of the violation and improve legal clarity.
▪ Harmonising Legal Provisions: To guarantee uniformity in the prosecution of crimes pertaining to child sexual exploitation, there is a request to harmonise the provisions of the POCSO Act, 2012, and the IT Act, 2000.
This alignment would improve child safety and expedite legal processes.
Making CSAM a distinct crime: In order to bring possession of CSAM into compliance with the provisions of the IT Act, 2000, it may be required to amend the POCSO Act to make it a distinct crime. These modifications would resolve discrepancies and offer more precise legal advice for prosecuting the offenders. ▪ Significance of State Action:
To avoid creating a harmful precedent, it is imperative that the state government and the relevant investigative agencies file an appeal against the Madras High Court’s ruling.
Maintaining the integrity of child protection legislation is crucial to protecting vulnerable groups and guaranteeing justice.
What Programs Are in Place to Reduce Child Abuse?
▪ Child Abuse Prevention and Investigation Unit ▪ Beti Bachao Beti Padhao ▪ The Juvenile Justice (Care and Protection of Children) Act, 2015 ▪ Child Marriage Prohibition Act (2006) ▪ Child Labour Prohibition and Regulation Act, 2016 ▪ Fast Track Special Courts: The Department of Justice has been putting into effect a Centrally Sponsored Scheme since October 2019 to establish Fast Track Special Courts (FTSCs) nationwide for the speedy trial of sexual offences. Each court is made up of one judicial officer and seven staff members.
