Sexual Harassment of Children in India with special reference to Child Pornography (By-. Mr.Kuljeet Singh & Tulika)
Sexual Harassment of Children in
India with special reference to Child Pornography
Authored By- 1. Mr.Kuljeet Singh
Assistant Professor,
Law College Dehradun
Uttranchal University
2. Tulika
Student, LLM 2nd Semester,
Law College Dehradun
Uttranchal University
“If we are to teach real peace in the world,
and if we are to carry on a real war against war, we shall have to being with
the children.”
----Mahatma Gandhi
Abstract
Human society is built on the
shoulders of children. The mental and physical well-being of future humans will
impact the nature of human society. The evolution of a country is defined by
the importance given to his kid, even as the identity of an adult is formed
during his or her primitive year. Children are the nation's most valuable
asset; so, child care should be prioritized in national policy. Children must
be raised to be nimble citizens who are physically active, cognitively sound
and attentive, and socially and ethically healthy. However, despite the number
of declarations and legislation at both the national and global levels, the
situation of minors is very far from adequate. History bears evidence to the
fact that these defenseless and innocent species has been subjected to a wide
range of abuses. Thousands of youngsters are acting as soldiers in violent
conflicts throughout the world, as according Human Rights Watch (HRW). Boys and
girls serving in regime forces and armed opposition organizations are among
them. According to estimates, thousands of youngsters under the age of eighteen
are currently operating in at least one conflict. 14 nations worldwide,
including Afghanistan, Burma, the Central African Republic, Chad, Colombia, the
Democratic Republic of the Congo,
Iraq, Somalia, the Philippines, South Sudan, Sudan, Thailand, and Yemen, as
well as India, where Maoist "Naxalite"rebels in Chhattisgarh utilise
children as soldiers. Children as young as six are inducted into the
youngsters's association, and children as young as twelve are used in the armed
squads, where they undergo firearms training and participate in armed
encounters with government security personnel.
There is no special category for
crimes against minors. Crimes against children are generally defined as
offences perpetrated against children or crimes in which adolescents are
victims. These are considered crimes against children. The Indian Penal Code
and the many protective and preventative 'Special Local Laws' specifically
specify crimes against children. Combatants, child exploitation, juvenile
beggars, underage sex industry, early marriages, child foeticide, child
slavery, child maltreatment, and so on are examples of problems wherein
children are mistreated and harmed.
Key words:
Child rights, Pornography, Children sexual abuse, Child Trafficking, Child
Labour, Vulnerable group
Introduction
Without a doubt, children represent
the country's future and require special care due to their physical and mental
abilities. There seem to be constitutional provisions concerning children.
Article 153 of the constitution empowers the state government to create
specific measures for children. as specified in Article 39(c)[1] of
the constitution of India the children are provided with opportunities and
facilities to develop in a very healthy manner. Freedom and dignity of children
should be protected.
According to United Nations Volunteer[2]– "Child
labour is becoming a pan-Indian scourge, but its severity varies by
region." So, without a determined effort from both the national and state
governments, this ignominy will not be eradicated. It would have been more
acceptable to approach the issue from a broader viewpoint and as a national
issue affecting any part of the country. So the court asked itself how it might
handle the issue of child labour, a solution to which is required to develop a
better India."
Article 24 [3]of
the constitution of India restricts the employment of minors in industries,
etc.
According to this article, "no
kid under the age of fourteen can be required to work in any industry or mine,
or engaged in any other dangerous occupation." Article 45[4] of
the constitution of India makes provision for free and compulsory education for
children. It specifies that "within 10 years of the start of this
constitution, the state should endeavor to provide for free and obligatory
schooling unless they attain the age of "fourteen years."
Furthermore, Article 47 declares that it is the obligation of the state to
enhance public health through increasing the standards of nutrition and living
standards. This Article states that "the state should view the advancement
of healthcare system as one of its fundamental tasks, particularly for
therapeutic reasons, of intoxicants and pharmaceuticals which are harmful to
health." These juvenile warriors often fight on front lines, carry out
suicide missions, or serve as spies, messengers, or lookouts. Girls may be
compelled to engage in sexual slavery. Many young boys are recruited or
enlisted by force, while others enlist out of desperation, believing that armed
organizations would provide them with the best chance of survival.
v Child Rights
Justice V.R. Krishna has quoted “The hallmark of culture and advance of
civilization consists in the fulfillment of our obligation to the young
generation by opening up all opportunities for every child to unfold its
personality and rise to its full stature, physical, mental, moral and
spiritual. It is the birth right of every child that cries for justice from the
world as a whole.”
Children are a vital national asset,
and the nation's future well-being is dependent on how those offspring grow and
develop. They are trusting, naïve, and full of optimism. Their upbringing
should be filled with joy and love. As individuals receive new experiences,
their lives should grow progressively. However, for many youngsters, the
actuality of infancy is quite different. They are starving and destitute. Aside
from that, there is a lack of health care and restricted access to basic
education for children. Children have a right to live, develop, be protected,
and have a vested interest in keeping their life. Adolescents are persons in
their very own right, with full access to human rights. The major reason for
protecting children's rights is because children are more susceptible then
grownups to the settings in which they live
In India there are several
legislations relating to the age of a child such as the children Act of 1960,
The Juvenile Justice act of 2000[5]. A
kid is defined as someone under the age of 16 as section 2(a) of the Immoral
Traffic Prevention Act 1956. A minor is defined as someone between the ages of
16 and 18 under this legislation, but a juvenile is defined as someone under
the age of 16 in Section 27 of the Code of Criminal Procedure, 1973. The
Children Act of 1960 establishes the age of a kid at 16 years for a boy and 18
years for a girl. A kid is defined as someone under the age of 15 under the
Factory Act of 1948. While as per section 2(11) of child Labour act, 1986[6]
child means a person who has not completed the age of 14 years. According to
convention on the Right of child, a child means a person male or female who is
below 18 years of age. Even according to international law, a ‘child’ means
every human being below the age of 18 years. This is a universally accepted
definition of a child and comes from the United Nation Convention on the Rights
of the Child[7], an international legal instrument accepted
worldwide.
v Sexual Abuse Of Children
The rise in crime and the growing
menace of sexual abuse of child, the supreme court in Sakshi v. Union of India and others[8],
considered it appropriate to once again request the law commission to examine
the illness it was submitted by way of this Petition to examine the feasibility
of making recommendations for amendment of the IPC[9] ...
deal with it in any other way that will close the loopholes In the current
case, the Court Observed that the Law Commission's 156th report does not deal
with specific illnesses such as child sexual abuse, and thus the Legislative
Assembly is actually needed to assess the viability of making recommendations
for amendments to the IPC or deal with the matter in any other way. Given the
severity of the children's illnesses as a result of sexual abuse, and given the
rise in crime, it is imperative to propose that the Law Commission recommend
suitable measures.
In Childline India foundation & another v. Allan John Moters &
others[10], wherein the children at the
Anchorage Shelter were subjugated to certain illicit and cruel treatment by
authorities and
others in charge of such shelters
where vulnerable homeless children were snatched under the pretence of
sanctuary and turned into prey.
Over the last few decades, India's
sex business has grown significantly. It involves the sexual exploitation of
individuals, primarily women and girls, through prostitution, pornography, sex
tourism, and other commercial sexual services. Corporate sexual exploitation of
minors is not a new occurrence or word in developing nations. With the massive
industrialization and urbanization that followed World War II, it exploded on a
grand scale. Victims from the developed countries in the name of helping the
under developed and undeveloped countries in the matter of economic development
and international understanding, visit these countries not only for the cause
mentioned above or tourist activity, but also for the purpose of the
exploitation of women and children[11].
In the- passage of time, the nexus between child prostitution and tourism industry
is no more a hazy domain.
Pedophilia refers to the expression and behavior of sexual
desire by certain adults for prepubescent youngsters (thirteen and younger) of
both sexes. In recent years, the number of visitors coming to Asia seeking sex
with youngsters has increased dramatically. The tourist industry admits that
during the tourist season, children under the age of fourteen are trafficked to
various tourist destinations from Andhra Pradesh, Kerala, and Tamil Nadu for
the benefit of international tourists.
v Child Pornography
The word ‘pornography’ has originated
from the Greek word “ pornographos’ meaning ‘writing about prostitutes’ and the
‘child pornography’ means lewd contents which uses children in a sexual
circumstance.[12] The
International Criminal Police Organization (INTERPOL) defines child pornography
as ‘means of depicting or promoting sexual abuse of a child, including both
print format and audio format – censored or sexual acts which includes private
parts of children. Child pornography is also defined as ‘representation by
whatever means, of child engaged in real or simulated explicit sexual
activities or any representation of the gentile of the child, the dominant
characteristics of which is depiction for a sexual need.[13]
Despite the fact that pornographic
material remained a prohibited practice all through the twentieth and
twenty-first centuries. Images were often made locally, were of low quality,
were costly, and were difficult to get.[14] “The
term "child pornography" is not new. It encourages prostitution among
young children by fooling their impressionable brains. A youngster must endure
both emotional and physical anguish, which remains a dark recollection again
for entire lives. Before executing such an atrocity, a kid raised in this
manner may have numerous psychiatric illnesses in the wrongdoers. One such
person should be branded and shunned by society. In the incidents covered in
the article, the Indian Judicial System is paving the way and inflicting harsh
sanctions. The definition and substance of obscenity are also highlighted in
the study. It also sheds insight on the long-term consequences for a child's
future.[15]
Children are frequently befriended by
persons who are really dubious or who use social media and the internet to seek
their own nefarious objectives. On the internet, there are drug rings,
prostitution rings, porn sites, hackers, and so on. Young children are
frequently exposed to criminals who, by their cheesy discourse, get such children
to act on their whims and desires. The world of the internet and social media
appeals to the youngster much, and due to his/her immature intellect, he/she
does not consider the evil side of that world. There are various kinds of child
sexual abuse one of which is child pornography that directly related to the
contemporary digital age.[16]
Child pornography is content “that visually depicts sexual conduct below a
specified age.” This is not only paedophiles who commit such awful and
despicable actions. The pornographic industry has grown extremely profitable in
recent years. It travels the world in a well-organized fashion. It is a
multibillion-dollar enterprise, and children are the most wretched pawns of the
bleak world. There are a number of videos on the internet that depict young
girls in outfit doing sexual actions, or there are online video games or video
games with levels in which young children are mistreated.[17]
Sometimes an enraged or rejected paramour immediately turns to the online world
and in order to take to take revenge from the other one. At many a times, there
are even advertisement for safe sex or use of condoms showing adolescent
teenagers.[18]
Peer pressure is another factor that
contributes to child pornography. Youngsters and their friends engage in
sexting, or the practice of transmission and reception sexual photos by mobile
phone. They post explicit and disgusting photographs, texts, and recordings in
their friends group, which is ultimately extremely accessible to publishers and
advocates of child pornography due to cyberspace. Young children frequently
post indecent pictures of their peers on the internet in order to harass them.
As a result, incidents of such abuse occasionally commit suicide.[19]
Trafficking in the teen age girls for
purpose of sex industry, including pornography, is occurring throughout the
world and appears to be growing socio-legal problem. The extent of problem is
difficult to document but numerous investigation suggest trafficking in minors
for sexual abuse like pornography is very. The poverty ridden girls and teenage
children are becoming victims of pornography in the interest. Pornographic
material, which is audio-visual footage featuring children in sexual
situations, is another kind of commercial sex of trafficked children that is in
high demand. Foreigners like India and other south Asian countries because
there are less rules against sexual abuse of children and south Asian children
may be transported more inexpensively.[20]
The two basic ways in which children
may be injured by child pornography are exposure to pornography and being
filmed, photographed, or otherwise made the subjects themselves. Teenagers are
especially vulnerable, and every image or videotape of child pornography is
proof of that kid's abuse. Long after the original content was generated, the
spread of that portrayal perpetuates the victimization.
The existing legal regime[21]
in India has not yet been fully developed to combat the emerging problem of
child pornography. Therefore a new set of policy of “vulnerability management’
by reformulation of our National Policy for Children, 1974 and our child
related laws are needed. Because, so far as child pornography with special
reference to child trafficking is concerned these provision seem to be dealt
with very strongly by enacting specific laws and implementing them vigorously.
Reason Behind Development of the
Child Pornography In Modern Era.
Computer has facilitated the growth
of our society but on the other hand it has worked as a catalyst
in promoting child pornography.
Needless to mention that the term ‘computer’ here should be understood in terms
of its definition in the Information Technology Act 2000.[22] Success of the pornography business has
reached the sky. For this, computer and internet is used as a tool in
committing the cyber crime and thereby evolving the new challenges from the
legal point of view. Thus, from more all the cyber crimes that the internet has
enabled, It is the ‘obscenity’ and more particularly the ‘child pornography’,
as it appeals to the one which has serious moral implications and it is the
form of information that has increased in economic value in our network environment.[23]
Internet is the sole medium through
which child pornography is being committed and distributed and following are
some of the ways through which it is committed.
(1) Webcam: Pornography sites provide live sex
of children via webcam in the internet.
(2) E-mail: It is used to share nude
images among users but generally ignored since it is considered as a risky
business.
(3)E-Groups: Such groups exist in
receiving and sharing the pornography among the members of the group.
(4) News Group: Such groups provide
news to the forum to discuss their interest in child pornography and facilitate
in posting the same. It is considered to be the major way by which child
pornography is being distributed.
(5) Bulletin Board System(BBS): It
acts as a guide to those who are seeking for child pornography by providing the
pornography sites.
(6) Chat Rooms: It is used to
exchange child pornography and to locate potential victims.
(7) Peer to Peer: It means sharing
nude images and child pornography among the peers.
Children are defenseless in matters
of sexual abuse and it found that the abettor is in a position to dominate the
child for sexual favors. A child can rarely defines about or imagine sexual
assault but he absolutely goes through it because of his innocence and no such
pornographic material are produced without harming the child be it mentally or
physically. It just reflects the physiological and mental level of the
offenders and the person availing the benefit of the situation. ‘A dirty pictures
of a beautiful flower’s presented for which persons spent a lot of money.
According to studies, among kids aged
10 to 17 who frequently use the internet, 20% get sexual
advances or contact or approach
through the internet, 1 in 33 receives a sexual solicitation, and 25% are
exposed to images of nude individuals or persons having sex.[24]
v Sexting- A Reason Behind Child pornography
“ Sexting” is a combination of the word “sex” and “texting”
and is used to describe “the digital recording lewd and sexual explicit content
for sharing with the online friends[25]
and sharing it over the internet by means of different social media platforms
and sites.
Sexting becomes popularized in the mid 2000s, brought about
“by the advent of convenient, affordable, accessible and mobile access to the
Internet” and the “privacy and anonymity” afforded by such communication. The
literature puts forward various conceptualizations of young people’s use of
sexting, often deconstructing the meaning attached to the practice in terms of
young people’s sexual development and socialization. There is widespread
agreement that it is hard to differentiate between coerced and non coerced
sexts and researchers acknowledge the potentially harmful effecting of sexting
on children and young people.[26]
Studies into Australian legal frameworks used to define and
manage sexting emphasize processes of trial and error involved in the
regulation of this complex issue, both
revealing the divide between digital natives and digital immigrants and
demonstrating significant challenges posed by digital technologies to child
protection.
An evaluation of the Framework for safer Mobile use also
stressed the importance of multi-stakeholder involvement to successfully
address e-safety issues. The European commission found that implementation of
the framework was effective; however, further recommendation for the framework
included the classification of commercial materials to ensure age- appropriate
content for minors and parental controls to block online content on their
children’s devices.
The definition of young people’s
self-taken images as child pornography has been particularly fraught and
difficult to characterize in term of legal blame. Clarification of the
definition of child pornography has been explored in research into sexting
.Some have suggested that the term “sexting” itself inadequately describes the
“spectrum of behaviors that range from what is intended as the private exchange
of images between sexually intimate youthful partners” and have expanded
the definition to included specific
social networking sites such as Facebook and YouTube. In that way, It is noted
that some digital technologies are “fuelling the exploitation of children.
Although, in many cases, young people talk about sexting as normal (if at times
unwated) activities among peers, It is widely categorized as illegal behavior. A
recent report by the UK- based National Society for the Prevention of cruelty
to Children (NSPCC) argued that children and young people “may be viewing
images of similar-aged peers, which could be classed as ages appropriate,
albeit illegal, sexual behavior.” That illegality has been questioned based on
the fact that consensual sexting is common behavior among children and young
people who are sexually active and/or have private access to mobile phones
consulted with Australian young people to investigate their experience of
sexting and found a moral and gendered element to risk management advice, and
discrepancies between adult (and media) perceptions of sexting and those held by
young people themselves.
Defenses to Child Pornography Charges.
Perhaps the most compelling defence
to child pornography allegations is that the defendant had no idea what he or
she was downloading or accessing was child pornography, and the defendant's
possession or receipt of the material was unintentional. Because the possession
of adult pornography is allowed, people may unintentionally obtain child
pornography materials, or they may be downloading a movie or TV show from a
file sharing service and inadvertently acquire something unlawful. The best
defence in these circumstances is that the components of the crime were not
satisfied because the requisite state of mind for criminal behaviour was not
there.
Defendants accused with child
pornography may also claim that, while the content was on their computers, they
did not download it. When a computer has numerous users, such as at work,
unlawful information may be downloaded by one person and then falsely ascribed
to another. Defendants may also fight the allegations made against them
procedurally. Police, like any other criminal investigation, must have probable
cause to search a person's computer or house for illicit items. Items collected
during a search that was done without reasonable cause and without a warrant
may be inadmissible during a criminal trial. As a result, any criminal defence
to accusations was carried out.
Judicial Attitude towards “Incest” children
sexuality.
“Incest” is a sexual connection or
intercourse between people who are within specific degrees of consanguinity, or
who are so closely related to one another that such a relationship or
intercourse is prohibited by law, such as a brother and sister and father, a
daughter and mother, and so on. Most
civilizations restrict sexual
relations between close kin. Children are vulnerable to incestuous conduct,
which is considered child abuse and a kind of juvenile delinquency.
The Bombay High court in Abdul Wahid Ali sheikh v. State of
Maharashtra[27] Where a
father was indicted with sexually assaulting his 8-year-old daughter, the court
sentenced him to ten years in jail rather than the life sentence imposed by the
trial court.
Children are understandably
interested in sex. Although many of them quickly discover that it is something to
be discussed only in dark corners, a source of dirty jokes, and such an
intriguing topic for everyone that they can draw admiring or distressing
attention to themselves from other young kids by being able to show that they
have some special "inside" knowledge. However, the fact that a youngster
is curious about sex and highly motivated to find out more.
The Apex court in M.H. Kakkad V. Naval Dubey,[28]
Convicted the accused for commiting rape upon a girl and had also committed a
very similar sexual assault on his niece and other girls of that locality. The
court therefore inflicted a very harsh punishment of life imprisonment.
Conclusion
Children today know far more than
their chronological age would suggest. They may use their phones and the
internet and social networking sites whether they live in a city or in the
country. They come into contact with persons who are looking for young children
to pull into the porn and exploitation industries. Their growing hormones and
young minds propel them to high levels, where they become entangled in the
hands of sexual predators, child pornographers, drug dealers, and other types
of criminal organizations.
Peer pressure is another factor that
contributes to child pornography. Young children and their pals engage in
sex-texting, the practise of transmission and reception sexual photos through
mobile phone. They post explicit and disgusting photographs, texts, and
recordings in their friends group, which is ultimately extremely accessible to
publishers and advocates of indecent images due to cyberspace.
Young children frequently post
indecent pictures of their peers on the internet in order to harass them. As a
result, survivors of such abuse occasionally commit suicide. Child pornography
production and consumption are inextricably linked to the actions of
pedophiles, pederasts, and those associated with sexual rings, sexual
trafficking, and child prostitution.
Digital cameras and video recorders
have made manufacturing easier and cheaper, and there is less chance of
detection because a third party is not necessary to develop the photos, which
do not age or lose quality via duplication.