Protection of Children from Child Pornography

Author: Utkarsh Srivastava
Advocate-on-Record, Supreme Court of India

• NEED OF POCSO ACT

Protection of Children from Sexual Offence Act 2012 (“POCSO Act”) was enacted to protect the children from sexual abuse and exploitation and child pornography. Sexual Exploitation of Children has plagued the societies worldwide including India.

Before enactment of POCSO Act there was no specific law tailor made to deal with the sexual offences committed against children. Indian Penal Code 1860 (“IPC”) although was equipped to handle sexual offences, it did not recognize the various forms of sexual abuse that children might face.

Under IPC there was no distinction between an adult and a child. There was no accountability for psychological and developments needs of a child who has been a victim of sexual abuse. Moreover, the procedure laid down in Code of Criminal Procedure 1973 (“CRPC”) was also not children friendly often resulting in secondary victimization of the child during legal process.

Therefore, POCSO Act was introduced to fill the gap and provide robust legal mechanism to safeguard children from sexual crimes and protect them from sexual assault, harassment and pornography.

Primary legislative intent behind enactment of POCSO Act was to create a comprehensive legal framework that would not only punish the offenders but also provide child-friendly environment for recording of evidence, investigation and trial of offences.

POCSO Act is designed to cover all forms of sexual offences against children including sexual harassment, child pornography, and aggravated sexual assault, among others.  It is manifestation of Article 15 and 39 of the Constitution of India and obligations ratified by India in the United Nations Convention on Rights of Children.

Article 15 (3) r/w Article 39 (f) of the Constitution of India enables the State to make special provisions for children ensure that the tender and vulnerable age of children is not exploited or abused. It obligated the State to secure a dignified and healthy childhood and youth, free from any moral or material abandonment or exploitation. Whereas the UN Convention prescribes to secure the best interest of the child and to take preventive measures against any form of exploitation of children such as prostitution, unlawful sexual activity or pornographic performances and depictions.

• LEGISLATIVE FRAMEWORK

In Attorney General for India v. Satish, 2021 INSC 762, Hon’ble Supreme Court of India examined the legislative scheme of POCSO Act and held that each provision of the Act should be construed vis-à-vis the other provisions of the Act and background of legislation so as to make the Act and its provisions more meaningful and effective.

It was also emphasized that the Courts should avoid such narrow interpretation that would defeat the purpose of the statute. Rather, where the intention of the legislature cannot be understood or realized, a meaningful construction of the statute should be adopted to bring more effective results.

It was held that the provisions of POCSO Act were designed with the need to protect the autonomy and dignity of children. Therefore, it is the duty of the Courts that the provisions of POCSO Act are not interpreted in a manner that would undermine its purpose or the pressing needs of the circumstances.

In Eera through Dr. Manjula Krippendorf v. State (Govt. of NCT of Delhi) & Anr., 2017 INSC 658, Hon’ble Supreme Court of India observed that,

“18. The purpose of referring to the Statement of Objects and Reasons and the Preamble of the POCSO Act is to appreciate that the very purpose of bringing a legislation of the present nature is to protect the children from the sexual assault, harassment and exploitation, and to secure the best interest of the child. On an avid and diligent discernment of the preamble, it is manifest that it recognizes the necessity of the right to privacy and confidentiality of a child to be protected and respected by every person by all means and through all stages of a judicial process involving the child. Best interest and well being are regarded as being of paramount importance at every stage to ensure the healthy physical, emotional, intellectual and social development of the child. There is also a stipulation that sexual exploitation and sexual abuse are heinous offences and need to be effectively addressed. The statement of objects and reasons provides regard being had to the constitutional mandate, to direct its policy towards securing that the tender age of children is not abused and their childhood is protected against exploitation and they are given facilities to develop in a healthy manner and in conditions of freedom and dignity. There is also a mention which is quite significant that interest of the child, both as a victim as well as a witness, needs to be protected. The stress is on providing child-friendly procedure. Dignity of the child has been laid immense emphasis in the scheme of legislation. Protection and interest occupy the seminal place in the text of the POCSO Act.”

…[Emphasis Supplied]

• CHILD PORNOGRAPHY UNDER POCSO ACT

Section 2(1)(a) defined “Child Pornography” as:

“any visual depiction of sexually explicit conduct involving a child which include photograph, video, digital or computer generated image indistinguishable from an actual child and image created, adapted, or modified, but appear to depict a child”

Section 15 provides as to when storage or possession of pornographic material containing Child Pornography shall be a punishable offence.

POCSO Act was amended vide Protection of Children from Sexual Offences (Amendment) Act, 2019. Prior to amendment, the definition of child pornography was missing in the Act. Additionally, only storage or possession of  material containing child pornography for commercial purposes was an offence under the Act.

Vide amendment, Section 15 was amended, and two more offences were included in addition to the possession or storage of child pornographic material for commercial purposes.

Firstly, the act of storage or possession of material containing child pornography with the intention to share or transmit the same was made an offence.

Secondly, even the omission to delete the stored material containing child pornography with the intention to share or transmit the same was also made an offence.

Section 15 of the POCSO Act as on date reads as,

“15. Punishment for storage of pornographic material involving child.—

(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.”

In addition to the above, Section 30 of the POCSO Act provides for presumption of culpable mental state beyond reasonable doubt by the court. Thus, the burden of proof is on the defence to prove absence of such mental state.

• MENS REA AND ACTUS REUS

Section 15 of the POCSO Act works on the principle of Inchoate Crime. Meaning that the offence committed in preparation for further offence is punishable under the Act. There is no requirement of an actual transmission of any child pornographic material. Even storage or possession of the same with the intention to share or transmit is itself punishable. Intention is being punished not the commitment of actual transmission.

Intention to commit a crime is totally different from thinking of committing a crime. In Inchoate crime, the law would only intervene at the point where an individual has acquired means to commit a further offence and will not punish mere thought of committing the offence in the absence of any overt steps towards the same. Thus, preliminary or preparatory Actus Reas that reflects the essence or existence of a criminal intent is the central component of Inchoate Crime.

For Example, possession of a contraband is not an innocuous act but a preparatory step towards committing a crime.

Thus, Hon’ble Supreme Court of India, in Just Rights for Children Alliance v. S. Harish, 2024 INSC 716, while holding that even possession of child pornographic material and the omission to delete the same with the intention to share or transmit the same is also an offence under Section 15 of the POCSO Act, gave a few illustrations which would help us to understand as under what circumstances, the possession or storage of such material will be an punishable offence or not.

• ILLUSTRATIONS GIVEN IN PARAGRAPH 97 TO 105 OF THE JUDGMENT IN JUST RIGHTS FOR CHILDREN ALLIANCE CASE (SUPRA)

Child pornographic material was found stored in the personal mobile phone of ‘A’ and the same was neither deleted, destroyed nor reported. Here though there is possession or storage of child pornographic material but since there is nothing to show any facilitation of transmission, propagation, display or distribution of the said material, this would attract the provision of Section 15(1).

1. At the same time, since, material in question was found in the personal mobile of ‘A’ the same is indicative that the omission to either delete, destroy or report in all likelihood was due to the intent to share or transmit.
2. Certain child pornographic material was found stored in a broken mobile phone of ‘A’ and the said material had never been deleted, destroyed or reported. Now again, there is nothing to show that there was either any actual transmission, propagation, display or distribution nor anything to show that something apart from and in addition to the storage or possession had been done by ‘A’ for facilitation of the transmission, propagation, display or distribution of such material. This would again attract the provision of Section 15(1) instead of 15(2) of the POCSO.
3. Material was found in a broken phone, it is likely that the failure to delete, destroy or report the same was attributable to the inability of ‘A’ to operate the broken mobile rather than the intent to share or transmit, thus, no offence would be made out under Section 15(1) of the POCSO.
4. Certain child pornographic material was found stored in the mobile phone of ‘A’ but this time, the said material had found its way in the device due to an automatic download of media of which ‘A’ had no knowledge whatsoever. Here although there is possession or storage of such material, yet the omission to delete, destroy or report is clearly shown and established by ‘A’ that it was due to lack of knowledge about the existence of such material on his parts. Here the manner in which the omission has occurred is not sufficiently indicative of the intent to share or transmit, thus no offence could be said to have been made out under Section 15(1) of the POCSO.
5. Certain child pornographic material was found stored in the mobile phone of ‘A’ but this time in addition to the aforesaid material few chats were also recovered wherein ‘A’ told his friend ‘B’ that he had some child pornographic material which he could share with him. Here, since there is additional material to show that ‘A’ had taken some overt steps in order to propagate the said material, he would be liable under Section 15(2) of the POCSO.
6. Certain child pornographic material was found stored in the mobile phone of ‘A’ but this time ‘A’ creates a chat group consisting of several of his friends, and sends a message therein stating that he has some child pornographic material which he would forward on the group. Here, since there is additional material to show that ‘A’ had taken some overt steps in order to distribute the said material, he would be liable under Section 15(2) of the POCSO.
7. ‘A’ who has certain child pornographic material in his phone, again creates a group consisting of several of his friends, but this time he sends a message stating that he has some child pornographic material which he would send in exchange of some amount of money. Here, since there is additional material to show that ‘A’ had taken some overt steps in respect of the said material for some monetary gain, he would now be liable under Section 15(3) of the POCSO instead.
8. Certain child pornographic material was found stored in five to six television devices in a hotel run by ‘A’. Here, because the pornographic material has been found to be stored in multiple devices that too at a place which has easy access for the public, the same would be indicative that the ‘A’ was using the hotel and the television devices therein as a means for facilitating display of such pornographic material, and thus, would be punishable under Section 15 sub-section (2) of the POCSO.
9. Certain child pornographic material were found stored in five to six television devices in a hotel run by ‘A’, but this time some price was mentioned onto the pornographic material itself. Here, because some amount of money was found to be mentioned on the material itself and the said material was stored in a place with easy public access, the same would be indicative that the ‘A’ was using the hotel and the television devices therein as a means for facilitating display of such pornographic material in lieu of monetary gain, thus, would be punishable under Section 15 sub-section (3) of the POCSO.