Combating Child Obscenity

Introduction:

Various judicial systems across the world recognize the characteristic difference between being an adult and a child. The primary distinction between the two is created everywhere by setting up an age bar, done by the legislative bodies. A child is a person below the age of 18 years old and in legal practice, a child is referred to as a minor^[1]. Most parents would want to provide their children with a safe and protected environment for their optimal growth. In doing so, they tend to hide specific information in good faith, knowledge of which might be inappropriate for the child.

Such a parent is also our legal system which aims to protect its citizens from harm and obscenity. With the Internet coming into this picture, generally, a similar distinction is made in the information available on it. There is content that is available universally, there is content that is supposed to be viewed under the supervision of an adult and there is content that is exclusively made for adults. Along those borders lies the heinous world where a child is used to make adult content. Child pornography is a form of child sexual exploitation.

Federal law defines child pornography as any visual depiction of sexually explicit conduct involving a minor (persons less than 18 years old).^[2] It is one of the most obscene forms of crimes, not only because it encourages sexual abuse of children and human trafficking, but also because it ruins the lives of such victims, subjecting them to mental issues like post-traumatic stress disorder, depression, anxiety, physical health complications, suicidal tendencies, etc. And the worst comes in India, which is home to the world’s highest number of child sexual abuse cases^[3]. 

What started as 3000 annually reported cases of child pornography in 1998, has crossed over 18.4 million reported cases worldwide. According to National Center for Sexual Abuse, child pornography is among the fastest online booming businesses and India is among the top consumers and contributors. In our country, every 40 seconds an adult film is shot, among which around 38% are related to child sexual abuse^[4]. 25% of the content searched in India is related to child pornography. If these statistics do not make the issue grave enough, then one should also know that the search numbers increased by 95% within the first two days of the lockdown period due to the pandemic.^[5]

The article aims to analyze the Indian legislative and judicial system and international framework at present combating the terrifying matters of child obscenity.

Understanding Child Obscenity

Child Obscenity or Child Pornography is a pornographic or adult film that portrays children as a part of the act, meeting the demands of its viewers. Such films are not limited to physically involving minors, but also includes films where actors portray themselves as minors. The former, more likely than the latter. Often, such acts include causing various kinds of pain to the children. These acts are sexual in nature and lead to sexual exploitation of the children.

The World Health Organisation defines the term ‘sexual exploitation’ as “any actual or attempted abuse of a position of vulnerability, differential power, or trust, for sexual purposes, including, but not limited to, threatening or profiting monetarily, socially or politically from the sexual exploitation of another.”^[6] The term ‘sexual abuse’ is defined as “the actual or threatened physical intrusion of a sexual nature, whether by force or under unequal or coercive conditions.”^[7] Films under the category of child pornography generally include both the crimes along with blackmailing the victims for further abuses.

Popularity of Child Obscenity

As stated earlier in the article, child obscenity is among the top booming illegal businesses across the world, and last year, India reported the most cases of child sexual abuse imagery.^[8] According to the National Centre for Missing and Exploited Children (NCMEC), India merely has 12 per 1000 worldwide internet users, yet in the past two decades, India has reported 3.88 million cases. On average, 1,16,000 searches are made daily according to the Indian Cyber Army. These statistics show a mere gist of the heinous demand fueling this crime.

Despite having Supreme Court orders and precedents, this demand is only growing for the worse. And history has been a witness that increasing demands are followed by increasing rates of supplies. To meet this demand, every 40 minutes a new film is created and uploaded on the internet. Kerala is the top state in the list of such uploads, while Haryana is where the maximum demand is created.^[9] What makes it even worse is the fact that these demands have increased by 200% ever since the lockdown. Seeing the increasing demand and supply of child obscenity, one would question, is the Indian legal system equipped with adequate laws to tackle the crimes?

Indian Legislations

The quick development of the web and innovation has brought about the ascent and accessibility of child obscenity in India. Numerous legislations have been enacted by the legislative body to fortify the legal system. In 2015, a big step was taken by the government by banning around 857 adult websites due to the alarming upload rate increase in 2013-14. The Information Technology Act 2000 in consonance with Article 19(2) of the Indian Constitution empowers the Indian government to enforce such barriers on the grounds of decency and morality. However, this ban was later shifted to a more restrictive sense, where only those websites were being banned which contained child obscene videos. But due to technological advancement and availability of VPNs, these websites were still accessible and within 2-3 days, they were back to the usual surfing rates. This part will investigate the present status of laws with regard to child obscenity in India.

Protection of Children from Sexual Offences Act, 2012 (POCSO Act)

This is the primary statute which addresses issues pertaining to child sexual abuse in general, but also includes matter of sexual assault, sexual harassment and pornography. It is mentioned under Chapter III that the inclusion of a minor in any form of media intending to fulfill sexual gratification, is an offense.^[10] The Act aims to provide legislative protection to children from sexual exploitation, as child pornography is admittedly one of the most grievous forms of exploitation of children.

The term ‘child pornography’ has not been legally defined. POCSO Act is the first act to even mention the two terms together in legislation. The term ‘child’ has been defined as any person below the age of 18 years. The term ‘child pornography’ intentively includes the involvement of a child in sexual acts, representation of their sexual organs, and obscene representation of a child through print, television, or the internet.^[11]

The Act provides for imprisonment of five years and/or fine for the said crime. Any successive conviction can also lead to life imprisonment along with a fine. The Act provides, not just for production, but also for storage of such obscene material with the intention of using it for commercial purposes.^[12]

The Parliament of India amended the Protection Of Children From Sexual Offences Act, 2012 in 2019. The amendment seeks to strengthen the punishments by including provisions for capital punishment and 20 years imprisonment for penetrative sexual assaults against a child younger than 16 years of age. The amendment provides a proper definition of the term ‘child pornography’.

Information Technology Act, 2000

The Information Technology Act, 2000 is the primary legislation dealing with data in electronic form. It provides for punishment for publishing or transmission of any obscene material. Earlier, matters related to child obscenity were dealt with under Section 67 of the Act. But since the 2008 amendment, specific provisions have been made for child pornography. Where only publishing or transmitting was punishable, now browsing, storage, distribution, and creation of such material are also punishable offenses. For a first-time offense, punishment is upto 5 years and a fine upto five lakh rupees, however for subsequent conviction, the punishment is of seven years and a fine upto ten lakh rupees. The offenses under the Act are non-bailable and cognizable.

Indian Penal Code, 1860

Pornography in any form is illegal in India and falls under Section 292 and 293 of the Indian Penal Code (IPC).

Despite having elaborate legislation, addressing child pornography is a difficult task. India does not possess the appropriate technology to extract child obscenity and remove it permanently from the internet. On one hand, Pornography has been protected by the Right to Freedom of Expression,^[13] and on the other differentiating child obscenity from this is challenging. Our country has the appropriate legislative system but heavily lacks the implementation which can only be improved if the Government approaches the issue in a more strict sense.

Judicial Approaches to Child Obscenity

The judiciary is equipped with the appropriate legal system and yet lacks implementation of the same. For example, there has not been a single case registered under Section 15 of the POCSO Act 2012, which provides for punishment for storage of child obscene material. But, the judiciary has put effort into resolving issues related to child pornography. They have failed to effectively show a strict approach in such matters because, generally, in these cases, the investigating body fails to provide sufficient evidence to prove the crime. There are very limited precedents delivered by the High Courts and Supreme Court. Some of the noteworthy cases are as follows-

State of Andhra Pradesh v. Mangali Yadagiri^[14]

Photos of a 14 years old female rape victim were taken by some people after the act of rape. Later, using the photos she was blackmailed to stop her from filing a complaint. Here, the High Court referred the matter to POCSO special court or SC/ST court, wherein, it was decided that the matter shall be tried in POCSO Special Court.

P. Shanmugavel Raj v. State and Ors.^[15]

A thirteen-year-old girl was subjected to sexual assault. The respondent police filed a final report against three accused for offenses under Section 376(2) I.P.C., Section 4 of POCSO Act r/w. 109 I.P.C. and Section 5(1)(d) of Immoral Traffic (Prevention) Act, 1956. The matter was transferred to a Special Court along with a Special Prosecutor under the POCSO Act.

Hector Firdaus Kothawala v. State of Maharashtra^[16]

The accused father was making sexual advances towards her 6 years old and 4 years old daughters. The act was discovered and reported by the mother. In this case, the accused was granted anticipatory bail due to lack of evidence as the young girls were not aware of the nature of the acts of their father.

Shashi and Ors. v. The State of Karnataka^[17]

In this case, the victim was sent to the forest by the accused to collect firewood. The accused followed the victim into the forest, raped her, and recorded the act on a videotape. The High Court of Karnataka has decided to grant them bail in its last order and the matter is still pending before the court.

Ishan v. State of M.P^[18]

In this case, the victim was raped by her friend’s brother recorded the same in a videotape. Here, the accused was a juvenile and the matter was sent to the Juvenile Justice Board. A revision petition was filed in the High Court of M.P., where the accused was released on bail.

International Perspective and Obligations^[19]

The primary international legislation, which provides for the protection of children from sexual abuse is The United Nations Convention on the Rights of the Child. It is the first legally binding treaty on the rights of children. All member states are obligated to ensure appropriate national, bilateral, and multinational measures are being taken for the protection of children from all forms of sexual exploitation under Article 34.

In 2000, the United Nations General Assembly adopted the Optional Protocol on child trafficking, child prostitution, and child pornography. It is the main all-inclusive treaty that manages the issue of sexual abuse of children. It lays down the standards for the protection of victims and ensures the rights of such are protected by the criminal justice process. The Optional Protocol provides for fortifying international cooperation and implementation of territorial laws, and it rejects the idea of dual criminality. Article 3 of the Optional Protocol mandates the States to criminalize the production, distribution, importation, exportation, dissemination, offer, or sale of child pornography and Article 3(1)(c) provides for the obligation on the States to punish the possession of child obscenity if it is for any of the purposes previously mentioned.

The Council of Europe Convention on Cyber Crime (2001), or more famously known as the Budapest Convention, is yet another convention that provides detailed provisions on child abuse. It has a practical approach with ease in application for provisions for judicial officers and the law enforcement agencies. Child Pornography is defined as, “a material that visually depicts a minor or a person appearing to be minor to be engaged in a sexually explicit act” under Article 9. It has a well-drafted characterization of child pornography which can help the Indian judicial system to differentiate it from pornography which is protected under Article 19(1)(a) of the Constitution.

The Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (2007) is yet another convention that can help in Indian judiciary in the same field. This convention also covers sexual tourism within child abuse. The lack of global adoption and implementation is a major drawback as currently it is only implemented in European nations.

Recommendations of the Rajya Sabha Committee

On December 12th, 2019, an Ad Hoc committee was established by the Rajya Sabha to address the rapid growth in child pornography on social media and its effect on children and society as a whole. This committee was instituted by Shri M. Venkaiah Naidu and headed by the Chairman of the Committee Shri Jai Ram Ramesh along with 13 other members, including 7 female members. The committee was given one month to prepare a report on the topic and give recommendations.

The committee, after thorough research and analysis came up with 40 recommendations in light of the adoption of a broader definition of child pornography, controlling access for children to such content, containing generation and dissemination of Child Sexual Abuse Material (CSAM), making accountable the Internet Service Providers and online platforms for denying access to children and removing such obscene content from online sites besides monitoring, detection and removal of content, preventing under-age use of such content, enabling parents for early detection of accessing such content by children, enabling effective action by the governments and authorized agencies to take necessary preventive and penal measures, etc.^[20]

These recommendations include amendments to the Protection of Children From Sexual Offences Act, 2012 and the Information Technology Act, 2000 besides technological, institutional, social and educational measures and state-level initiatives to address the alarming issue of pornography on social media and its effects on children and the society as a whole.

Suggestions and Conclusion

Pornography itself is a complex topic for debate as it not only includes legal aspects, but also moral values of the society which is subjective in nature and keeps changing from nation to nation. But Child Obscenity or Child Pornography is a far deeper issue than pornography itself. The victims of such crimes are vulnerable to numerous mental disorders, physical harm, and it can adversely alter the child’s perspective of humanity. These victims face re-victimization because of the rampant spread of child obscenity and easy access to such material. India is home to 472 million children which represents 39% of the country’s population. Keeping that in mind, laws need to be structured in ways that result in the betterment of the children as they are the future of this country and the world. To curb the regulatory problems, the following suggestions are given^[21]:

1. Acquire technical knowledge and expertise in Internet pornography.
2. Establish links with other agencies and jurisdictions.
3. Establish links with ISPs.
4. To strengthen the central authority and a proper communication channel to be set up.
5. To know the peculiarities of law and the POCSO court working in resonance with the IT Act.

Although, laws to curb the problem of child obscenity are in force, yet it is evident that they are not enough. Moreover, they heavily lack proper implementation and strict enforcement by the police force and judicial system. But the problem will not be solved even with the proper legal and judicial system. Because the guilty can be punished, but the problem of morality lays deep at the grass-root level of society.

Notwithstanding having some international conventions set up, we, as human beings, have had misfortunes in chalking out the very difference between what’s right and wrong. This is a spectrum, where if we don’t correct our mistakes, we have failed humanity itself.

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References:

^[1] Article 1, Convention on the Rights of Child

^[2] https://www.justice.gov/criminal-ceos/child-pornography

^[3] Growing Rape Cases in India: These Statistics Reveal 7 Ugly Truths about Sexual Violence in The Country, ADR India, 19 Apr 2018, https://adrindia.org/content/growing-rape-cases-india-these-statistics-reveal-7-ugly-truths-about-sexual-violence-country

^[4] Shashank Shekhar, Despite crackdown, India emerges as one of biggest contributors, consumers of child porn, India Today, Sept. 6, 2017, https://www.indiatoday.in/mail-today/story/child-pornography-kerala-haryana-csam-1038765-2017-09-06

^[5] IANS, Demand for child pornography in India spiked since lockdown: ICPF, ET CISO, April 14, 2020, https://ciso.economictimes.indiatimes.com/news/demand-for-child-pornography-in-india-spiked-since-lockdown-icpf/75127959

^[6] Our work to prevent sexual exploitation and abuse, WHO, https://www.who.int/about/ethics/sexual-exploitation-abuse

^[7] Our work to prevent sexual exploitation and abuse, WHO, https://www.who.int/about/ethics/sexual-exploitation-abuse

^[8] Ambika Pandit, India tops list on reported child sexual abuse imagery, TOI, Oct. 1, 2019

^[9] Shashank Shekhar, Despite crackdown, India emerges as one of biggest contributors, consumers of child porn, India Today, Sept. 6, 2017

^[10] Sec. 13, POCSO Act 2012

^[11] Sec. 14, POCSO Act 2012

^[12] Sec. 15, POCSO Act 2012

^[13] Vallishree Chandra & Gayathri Ramachandran, The Right to Pornography in India: an analysis in light of individual liberty and public morality, 4 NUJS L.Rev. 323 (2011)

^[14] 2016, Cr.L.J. 1415

^[15] 2015 (1) Crimes 536 (Mad.)

^[16] LAWS(BOM)-2013-8-267

^[17] 2000 Cr.L.J. 4808

^[18] 2015 (3) CGLJ 20 : 2015 (2) MPHT 309

^[19] Milind Rajratnam, Combating Child Pornography in India, JURIST – Student Commentary, May 14, 2020, https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/

^[20] Parliamentary of India, Rajya Sabha (2020), Reports of The Ad Hoc Committee of the Rajya Sabha to study the alarming issue of pornography on social media and its effect on children and society as a whole,

^[21] Barla Mallesh Yadav, India’s Response To Combating Child Pornography, 2017, JEDR, Volume 5, Issue 4, https://www.ijedr.org/papers/IJEDR1704190.pdf

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