CHILD PORNOGRAPHY AND ITS LEGAL FRAMEWORK FOR ITS CONTROL: A CRITICAL ANALYSIS BY - SUMIT KUMAR BHARTI & ANUSHKA DUTTA
“CHILD
PORNOGRAPHY AND ITS LEGAL FRAMEWORK FOR ITS CONTROL: A CRITICAL ANALYSIS”
ABSTRACT
In Indian society, sex is a taboo topic that is often associated with
immoral behavior. Child Pornography is a type of pornography in which a child
is shown in an image or on video making a sexual sound in an attempt to arouse
the sexual urges of those who engages in it. The most shocking thing about
these kinds of recordings is usually show how brutally the children and
adolescents who were in agony while watching them are portrayed. Such a type
frequently snap images of children’s bodies, record a video of the children
engaging in sexual activity, and sell such videos in the Indian Society. The researcher
in this paper has tried to show the major challenges which has been facing by
the society. This paper has also the NCRB report of India which has shown how
many children has been victimized and how many cases has been registered
against them.
Keywords: Child Abuse, Exploitation, Child Pornography, Victim, Child
It is widely perceived that childhood is often considered as a “golden
age” described as freedom, innocence, bliss, joy and play. This time period is
considered as the ‘Safety and Security, liberated from the burdens of grown-up
liabilities. However, it’s additionally important to recognize that young kids
are in general vulnerable and can undoubtedly become the victim to abuse and
exploitation, as well as impacted by hurtful societal components. Consequently,
they are defenselessness highlights the requirement for expanded protection and
care from the rest of the world.[3] Child
Sexual abuse incorporates different types of sexual victimization of children,
including both non-penetrative and penetrative sexual intercourse, sexual
harassment, sex tourism, online exploitation, pornography and commercial sexual
abuse. Lately, child sexual exploitation has arisen as a worldwide issue, with
a critical number of cases detailed in monetarily developed countries, despite
the fact it is likewise common in emerging countries. The event of child sexual
abuse is impacted by cultural and societal practices. Tragically, many cases go
unreported due to culture of silence, feeling of dread towards embarrassment
and social shame, which frequently prevents victims from speaking out. Minor
occurrence of misuse are much of the timely disregarded. A review led by the
Ministry of Women and Child Development across 13 states in India uncovered
that almost 50 per cent of the children studied were victims of the sexual
abuse, with boys similarly affected’ over 20 per cent boys experienced serious
type of child abuse.[4] Child
sexual abuse material, legally referred to as child pornography, encompasses
any content that depicts sexually explicit activities involving a child. This
includes visual representation such as photographs, videos, or computer
generated images.
Definition of Child
Pornography
“Pornography” term has been defined from Greek words “Porne” and
“Graphien” which in literal terms means that the works related to sexual sex
and themes or writing about prostitutes. The term ‘Porn’ or ‘Pornography’ has
been very hard to define to be in particular meaning because each nations has
its own definition in where pornography is lawful but in some it is against the
law as well as punishable. So, there are multiple definitions around the word
which define “Child Pornography”. The definitions are as follows:
1.
UN Definition: “Child
pornography (also called child sexual abuse material or child porn) is
pornography that exploits children for sexual stimulation. It may be produced
with the direct involvement or sexual assault of a child (also known as child
sexual abuse images) or it may be simulated child pornography.”
2.
Indian Definition: According
to the definition given in POSCO Act, 2012 child pornography is “any visual
depiction of sexual explicit conduct involving a child which includes
photograph, video or digital or computer- generated images indistinguishable
from an actual child and an image created, adapted or modified but appear to
depict a child.”
3.
Federal Definition: As per
Section 2256 of Tile 18, United States Code, Child Pornography refers “to any
kind of visual depiction that displays sexually explicit conduct that involves
individuals who are under the age 18.”
Nature of Child
Pornography
The offence of child pornography is not one act but a series of chain of
grave offences with severe results. It starts with the sexual exploitation of
the child, who cannot acknowledge what is happening to them, even if they
realize then also it does not decrease the horror of being exploited. This
abuse afterwards get recorded and shared among depraved individual who may
derive twisted pleasure from seeing the suffering of these exploitation,
fueling and filling their own desire to commit such act. This process result to
the increase of such behaviors with various acting on these impulses resulting
in escalation of these crimes.
As a child, everything in beginning of life is new but when they become
the victim of a crime as during their childhood, it is very difficult for them
to overcome the harshness they will face in their life afterwards. The cycle of
internet has grown tremendously which have coincided with rapid expansion of
the child pornography. These images are accessible through nearly every form of
internet, including social networking sites, file-sharing and photo-sharing in
the market.
1. ECPAT International (Ending
Child Prostitution and Trafficking):
ECPAT is dedicated to ending online sexual exploitation of children, child
trafficking and sexually exploitation of child in the travel and tourism world.
This Organization uses reports on basic freedom to monitor countries that have
adopted which is defined by agreements like Lanzarote Convention on Cyber
Crime.
2. Treaties: At least there are two major
treaties in which one is focusing on ‘Optional Protocol’, made to fight against
the evil child pornography worldwide. First major treaty is affiliated to the
Council of Europe’s Cyber Crime Convention, The Council of Europe Convention on
the Protection of Children against Sexual Exploitation and Sexual Abuse, and
the EU Framework Decision of 2006, which obligates the member states to
illegalize all types or kind of child pornography. Second major treaty is
affiliated to the United Nations, which was established under Article 34 of the
United Nation Convention on the Rights of the Child (UNCRC). It states that the
all the members of this Convention shall take measures to prohibit the
exploitation of child in sexually, pornographic performances and distributing
of these materials.
3. International Centre for
Missing and Exploited Children: This Organization
opposes the social evil like child sexual exploitation, Child Pornography, and
Child Abduction. For recognizing the social evil like child pornography, they
have made a ‘model legislation’ which provides a clear meaning and pinpoint
sanctions and sentencing. There was a research which was conducted in 2018
which clarifies that child pornography is penalized in 118 out of 196 Interpol
member states.
International Laws
Under International Law, first convention which was implemented on
children’s right was (CRC) which can be called as ‘Children’s Right was
convention of rights of children. The CRC Convention gave the checkpoints or
the guidelines on rights enjoyed by the children and also give most accurate
meaning to the term ‘child’. As per the Article 2 of the CRC Convention makes
it transparent that no discrimination shall be made in respect of race,
language, sex, religion or any other status when you are giving power to the
child of their rights.
Article 19(1) focuses on the need to importance of every child from
different and kinds of physical and mental violence, specifically i.e., sexual
maltreatment, abuse, and exploitation. This article is very crucial in making efforts
to change for ending evil of sexual exploitation on children. The Universal
Declaration of Human Rights i.e., (UDHR) also addresses and signifies child
abuse and protection in which Article 25(2) of the ‘declaration mentions that
all children, irrespective of the fact that whether they are born legitimate or
illegitimate of wedlock, shall be equally protected.’ Same goes on with the
International Covenant on Civil and Political Rights which includes Article
24(1), ‘stating that every child shall be given protection without
discrimination on the basis of race, sex, or color, as per their status as a
minor, by both their family and society.’ Inclusively, Article 34 of the ‘United
Nations Convention on the Rights of the Child (UNCRC) requires all signatory
nations to take appropriate measures to prevent the exploitative use of
children in pornographic performances and materials.’
In 2006, European Union Framework Decision by Council of Europe’s Cyber
Crime Convention came into play when all the members under this conventions
signed for criminalization of all modes if child pornography.
3. INDIAN LEGISLATIONS
Now it has been more than a decade when internet came into the hands of
everyone in which the view was using in such a way that will connect each and
every one around the globe but various types of malpractices came into the
existence in which one of the major point was sexual maltreatment of children
on which an ongoing report of the Ministry of Women and Child Development which
states that over 50 percent of the children has been harmed or sexually
exploited in their life. As most of the world parts are working on the
eradication of the evil of child pornography, India also worked on their
legislations where the Government of India drafted a Bill in the year which was passed i.e., Protection of Children
from Sexual Offences Act, 2012. This enactment was made which guarantees that
stricter actions will be taken into considerations for pedophiles against the
evil of children from Sexual Offences.
Not only there is one enactment which is working against children from
sexual offences but the Constitution of India as per Article 21[5] that
gives privilege of living with freedom and life. Additionally, Article 24 does
not allow children beneath 14 years to work in a factory, mine, plant or taking
any apart in dangerous business. Also, Article 39(f) of the Constitution of
India makes the duty of the Government or State to work together on approaches
towards the wellbeing and quality of education to children and give them
opportunity to grow steadily. Article 45 of the Indian Constitution makes the
duty of state make attempt to give the youth caring and train children under
the age of 6 years. There are various laws for the protection of child from
various forms of exploitation specifically child sexually being exploited like:
The Immoral Trafficking (Prevention) Act, 1986, The Child Marriage Restraint
Act, The Child Labor (Prohibition and Regulation) Act, 1986 and The Juvenile
Justice (Care and Protection) Act, 2000.
The Bharatiya Nyaya Sanhita, 2023 and Bharatiya Nagarik Suraksha Sanhita, 2023 gives the
procedural and substantive pieces of criminal offences, adding those which
applies to the children as well as women. Section 63 of Bharatiya Nyaya
Sanhita, 2023 (Rape), Section 377 (Unnatural offences). In addition to there
are laws offences against minor young ladies for prostitution. These
initiations were specifically for the women and are not sufficient in overall
wither substantially or procedurally.
Apart from these legislations, the State of Goa has enacted the Goa
Children’s Act, 2003 to ensure, advance and protect the interest of children at
Goa and to make in general public that is so much pleased to be child inviting.
There are following legislations which can be classified offenses into three
categories:
·
Aggravated rape: Aggravated
form of rape includes various kinds of intercourse—vaginal, oral, anal, object
using, forced minors to engage in sexual acts with each other, intentionally
giving or causing injury to sexual organs, and involving children in explicit
photos or films.
·
Sexual assault: Sexual
assault involves touching sexually using any body part or through any object,
voyeurism, exhibitionism, showing obscene images or films to children, forcing
children to watch others engaged in sexual activities, threatening to sexually
abuse a child, and verbally abusing a child with vulgar or obscene language.
·
Incest: Incest includes
refers to the commission of sexual offenses by an adult or child who is in
relation to that child or minor, including through adoption.
Child Pornography is penalized and strict across the country as per the
Section 67B of Information Technology Act, 2000. In present era, Protection of
Children from Sexual Offences Bill was made in the year 2006 and was passed by
the Parliament in the year 2012.
Although legislation has enacted laws and tried their best but the
implementation is still under progress. For Instance, Section 15 of POCSO Act,
2012, which is recognizing the storage of material related to pornography of
children for commercial purpose, and there are multiple cases related to this
particular. This gives us the suggestions that the authorities are trying their
but it’s still under progress. The Judicial Pronouncements are as follows:
1.
State of Andhra Pradesh v.
Mangali Yadagiri[6]
the matter in question of the High Court, it was the SC/SST girl was raped by
the some men and photographs were taken and they threaten her by not telling to
anyone then perpetrators would show it to public.
2.
Shashi & Ors. v. State
of Karnataka[7],
some friends of the victim’s father raped a girl in the forest and made the
video of her. All the offenders were charged under the POSCO and IT Act.
3.
Hector Firdaus Kothavala v.
State of Maharashtra[8], this
matter is related to the anticipatory bail for the offence relating to PCSO
Act. In this case, a heinous crime was committed in which the father of 2
children was taking sexual advancement towards them. The wife of the husband
found out that her 2 years and 4 years girls were being molested by their own
father. The matter was filed by mother under the POCSO Act and IT Act.
In the present scenario, on date 24 September 2024 the Supreme Court of
India gave their interpretation on Section 15 of POCSO Act.[9] The
Supreme Court of India presently increased the scope of the meaning of the word
“possession”. The word ‘possession’ in child pornography case from now on
include displaying and viewing the content of child pornography. The Supreme
Court increased the scope of the term ‘possession’ in which the person might
not have the physical possession of material relating to child pornography however
the person might have the power to control and also have the knowledge of
possessing the child pornographic material. The Supreme Court by this approach
came with the idea of ‘constructive possession’ in which the possession of the
child pornographic material will include ‘viewing and displaying’ as per the
Section 25 of Protection of Child from Sexual Offences Act, 2012. In which
Supreme Court judge Justice Pardiwala gave the illustration by saying “Say for
instance, ‘A’ routinely watches child pornography over the internet but, never
downloads or restore the same in the mobile. Here ‘A’ would still be said to be
in the possession of such material, while he exercises a considerable degree of
control over such material including but not limited to sharing, deleting or enlarging
such material, changing the volume etc. Furthermore, he himself on his own
violation is viewing such material, he said to have knowledge of having control
over such material.”
Another illustration was given by the Justice Pardiwala that “‘A’ is
sent an unknown link by ‘B’, which upon clicking opened a child pornographic
video on the phone of ‘A’. Now if ‘A’ immediately closes the link, although
once the link is closed ‘A’ is no longer in constructive possession of the
child pornography, this by itself does not mean that ‘A’ has destroyed or
deleted the said material by merely closing the link. ‘A’ will only be absolved
of any liability if he after closing the link further reports the same to the
specified authorities.”[10]
This matter was presently in question because of the data on Section 14
and 15 of POCSO, 2012 by the NCRB report
|
Year
|
Incident
|
Victim
|
|
2022
|
696
|
703
|
|
2021
|
536
|
540
|
|
2020
|
584
|
592
|
|
2019
|
1114
|
1117
|
|
2018
|
812
|
821
|
6.
FINDINGS
1. Public Awareness- Public awareness is one of
the essential tools in preventing child pornography, but sometimes its
implementation is not made in a proper way. Promoting education regarding this
issue and reporting of exploitation of child can build up preventive measures.
2. Impact of Technology- With an advent rise in
digital technologies, the detection and prosecution of cases regarding child
pornography cases has more complex in terms. With a rapid use of social media
platforms, encryption etc., law enforcement becomes weak in tracking offenders.
3. Effectiveness of Existing Laws- Many countries
have a well- established law related to prevention of child pornography but has
not enforced in a well- established way. Most of the times, different jurisdictions
can affect the effectiveness of these legal frameworks.
4. Victim Support Mechanisms- Almost all legal
frameworks giving its primary attention towards punishing offenders. In our
society, there is a need of concept called ‘Victimology’ through which sufficient
attention must be given to the victim.
5. Ethical dilemmas- There have to be a balance
between prevention of child pornography and protection regarding privacy rights
of individuals.
7. CONCLUSION AND SUGGESSTIONS
The concept of Child Pornography is very complex in terms of legitimate
and procedural challenges in protecting the child’s interest. There are
multiple evidences that child pornography cannot be defined in a particular
form because of carrying social and culture norms which is creating difficulty
in the creation of defined global framework. These problems are not only global
in nature but these are further compounded by the different approaches to
criminal jurisdiction over internet based activities, extradition and the
evidence collection. There is lack of uniformity and consistency on the
framework of privacy, regulation contention and pornography also have
significant hurdles to implement a workable global strategy. Even if the
problems are highlighted, these hurdles cannot be insurmountable.
1. Strict laws act as deterrent effect on the mined of the wrong doers.
Countries shall take strict actions against child pornography so that the wrong
doers have a fear about being harshly punished.
2. Young individual must have proper knowledge about the sex education and
also about the crimes related to them as well.
3. Initiatives must be taken to eradicate these evils of the society.
Initiatives shall have the motive to eradicate from the roots of the society.
4. In addition for strict laws, proper enforcement is important. Active
involvement shall be there in fighting against the evil of child pornography,
arresting, identifying and prosecuting its producers and distributors. The
judiciary shall operate efficiently, ensuring swift and fair judgment to
deliver justice.
5. Lastly, we are responsible citizens of the country must stop ourselves
from getting indulge into child pornography.
1.
Protection of Children from
Sexual Offences Act, 2012
2.
Constitution of India, 1950
3.
National Crime Records
Bureau Reports of 2012
4.
United States Code
5.
Indian Express Newspaper of
23 September 2024
6.
Reethu Ravi, Crimes Against
Children Increased 4.5% In 2019: NCRB Data, available
at:https://thelogicalindian.com/crime/crimes-against-children-increased-24102.
8.
Ayushi Dixit, Child Sexual
Abuse: Every childhood is worth fighting for (GeographyUndergraduate, Banaras
Hindu University)
[3] Trevor Buck,
International Child Law, (Routledge Taylor & Francis Group, 3rd
edition, London, 2014)
[4] Study on Child Abuse:
India (2007). Ministry of Women and Child Development, Government of India,
2007 available at: www.wcd.nic.in/childabuse.pdf (visited on September
30, 2024)
[5] The Constitution of India,
1950
[6] AIR 2016(1) ALD (Cri)
314 (A.P.)
[7] CRL. RP 717 OF 2017
[8] CRP No. 222 Of 2020
[9] Section 15 of
Protection of Children from Sexual Offences lays down that:
1.
“Any
person, who stores or possesses pornographic material in any form involving a
child, but fails to delete or destroy or report the same to the designated
authority, as may be prescribed, with an intention to share or transmit child
pornography, shall be liable to fine not less than five thousand rupees and in
the event of second or subsequent offence, with fine which shall not be less
than ten thousand rupees.”
2.
“Any
person, who stores or possesses pornographic material in any form involving a
child for transmitting or propagating or displaying or distributing in any
manner at any time except for the purpose of reporting, as may be prescribed,
or for use as evidence in court, shall be punished with imprisonment of either
description which may extend to three years, or with fine, or with both.”
3.
“Any
person, who stores or possesses pornographic material in any form involving a
child for commercial purpose shall be punished on the first conviction with
imprisonment of either description which shall not be less than three years
which may extend to five years, or with fine, or with both and in the event of
second or subsequent conviction, with imprisonment of either description which
shall not be less than five years which may extend to seven years and shall
also be liable to fine.”
[10] Just Rights For
Children Alliance & Anr v. S. Harish & Ors., SLP(CRL) No. 3665-3666 of
2024.