Co-Written by Hardeep Singh and Prajakta Pradhan
There is no doubt that with the ever-increasing use of the internet, cases of child pornography have increased at a burgeoning rate. The reason behind this fact is that the internet itself has extraordinarily diminished the obstruction to passage for the creation and dissemination of child pornography. This ease of creation and transmission of child porn from one paedophile to other paedophiles and from one country to several other countries has given child pornography a new life and vigour.
Drastic Spurt in Demand for child pornography material amid COVID-19
On April 13, the India Child Protection Fund (ICPF) claimed that there has been burgeoning demand for child sexual abuse material amid lockdown due to COVID-19. There has been a 200% spurt in demand for violent child abuse content since December 2019. Metropolitan cities like Delhi, Mumbai, Kolkata and Chennai are at the top of the list for such demand. Many paedophiles and sadistic criminals are exploring the internet all day long, making the internet dangerous for children.
On February 12, 2020, the Ministry of Electronics and IT (MeitY) released preliminary guidelines and sent it to the law ministry for final approval. The guidelines state that internet giants will be required to install in-built automated filters for content related to child pornography. An improvement in these guidelines is expected in the area of social media platforms. Encrypted social media platforms make it difficult for law enforcement authorities to track down messages; therefore, the government is seeking ways to make them responsible and liable too.
International Legal Frameworks
The UN Convention on the Rights of the Child (CRC) – It is a human rights treaty that espouses the multifarious rights of children. It requires the member states to act in the best interest of a child and protect them from any form of sexual exploitation. This is inclusive of the exploitation of children in pornographic acts.
The United Nations Convention against Transnational Organized Crime (UNTOC) – It is a United Nations treaty against all forms of organized international crimes. Many International pieces of research and studies show that child pornography is carried on worldwide through many organized criminal gangs. This treaty requires the member states to criminalize organized crimes and show full cooperation in its suppression.
ILO Convention no 182 on the Elimination of the worst forms of child labour– Offences against children are of the worst form. Therefore, in the wake of repeated calls for an international convention, the International Labour Organization adopted this convention in June 1999. This convention requires the member states to prevent worst forms of child labour which are described in article 3 as “the use, procuring or offering of a child for prostitution, for the production of pornography or pornographic performances”
Legal provisions and Judicial approach concerning child pornography in India
Possessing, distributing or producing child pornography is a crime in India. Legislation passed under Indian penal code was not competent enough to effectively protect the children from the sexual offence as it had many loopholes. It had a very narrow scope and did not cover the wide range of offences which were steadily increasing therefore, the government passed the POSCO Act in 2012.
POSCO Act, 2012
To provide a robust legal framework for the protection of children from offences of sexual assault, sexual harassment and pornography, while safeguarding the interest of the child at every stage of the judicial process, legislation was passed in the parliament commonly known as protection of children from sexual offences (POSCO ACT 2012). This act mentions a variety of offences under which an accused can be punished.
It recognises various forms of penetration other than penile-vaginal penetration and criminalises acts of immodesty against children too. Offences under the act include Penetrative Sexual assault, sexual assault, sexual harassment, child pornography and aggravated penetrative sexual assault. Chapter 3 of POSCO ACT deals exclusively with child pornography; it criminalises the use of a child for pornography.
Information Technology Act, 2000
Section 67(b) of the IT Act deals with child pornography, depicting children engaged in the sexually explicit act, creating text or digital images or advertising or promoting such material depicting children obscenely or indecently etc. or facilitating abusing children online or inducing children to online relationship with one or more children etc. come under this Section. ‘Children’ mean persons who have not completed 18 years of age, for this Section. Punishment for the first conviction is imprisonment for a maximum of five years and a fine of ten lakh rupees and in the event of subsequent conviction with imprisonment of seven years and a fine of ten lakh rupees.
In the case of Jan hit Manch & Ors. v. The Union of India, a PIL was filed under article 67(b) of the IT Act which sought a blanket ban on pornographic websites. The NGO had argued that websites displaying sexually explicit content harmed the youth of India. Since section 67(b) contains provisions against crimes committed by a particular person, the Supreme Court rejected the petition and advised the petitioner to file a petition against individual websites or person.
Indian Penal Code
The selling and distribution of pornographic material are illegal in India under section 292 and the manufacturing, publishing and distribution of pornography are illegal in India under section 292, 293. In the case of Kamlesh Vaswani vs. Union of India and others, a writ petition was filed in the Hon’ble Supreme Court to direct the respondents to block pornography websites and restrict both private and public access to them. This petition was filed on the grounds of ‘obscenity’ which is an offence under section 292, 293 and 294 of the Indian Penal code. The Supreme Court stated that innocent children can’t be made a prey to such heinous activities in the name of liberty and freedom of expression and directed the government to suggest ways to curb such activities.
Conclusion and the way forward
India’s population is mostly dominated by youngsters. In this regard, the laws should be made in consonance and for the betterment of the children as they are the future of this country. It can’t be argued that sexual offences against children should go on without serious consequences. These are one of the most heinous and brutal crimes which can be committed by a person. The offences of child pornography, erotic entertainment, the creation, ownership and expansion of such materials keep on raising worries among officials and law implementation organizations on both national and universal levels. The fact that such crimes are increasing continuously at an alarming rate proves that children worldwide are at extraordinary risk.
Hardeep Singh– Is an undergraduate(1st year) student at Dr Ram Manohar Lohia National Law University, Lucknow. He is also a member of Society for Excellence in Arbitration Law of RMLNLU. His interest lies in Cyber Law and International Criminal Law.
Prajakta Pradhan– Is an undergraduate(1st year) student at Dr Ram Manohar Lohia National Law University, Lucknow. I am also a member of the Internship and Placement Committee of RMLNLU. My interest lies in Technology Law and International Human Rights Law.