– Arushi Singh
‘H was found to be consuming child pornographic material as per the Computer Forensic Analysis Report. His phone contained two such videos stored in it. While he was chargesheeted under Sections 67B of the IT Act and 15(1) of the POCSO, i.e., punishment for publishing or transmission and storage of pornographic material involving a child, an FIR was filed only under Section 14(1) of POCSO. Section 14(1) pertains to punishment for using child for pornographic purpose. The High Court quashed the criminal proceedings against the accused on the grounds that no child was used by the accused for pornographic purposes and he never attempted to publish or transmit any such material. The matter was then appealed for before the Supreme Court by ‘Just Rights for Children Alliance’ a coalition of NGOs working against child trafficking and allied causes.’
In its detailed 200-page order, the court thoroughly examined the jurisprudence related to inchoate or incomplete offenses, particularly concerning Section 15 of the Protection of Children from Sexual Offences Act (POCSO), 2012. Additionally, the court clarified the scope of Section 67B of the Information Technology (IT) Act of 2000. Most importantly, the order addressed the profound impacts of child pornography and abuse on children. This piece aims to elaborate on this third aspect of the judgment while briefly touching the discussions on Section 15 of POCSO and Section 67B of the IT Act.
The court examined the mens rea element in each of the three subsections of Section 15 of POCSO. It concluded that subsections (1), (2), and (3) of Section 15 represent distinct offences that cannot coexist. Section 15(1) penalizes the failure to delete, destroy, or report any child pornographic material, while Section 15(2) addresses the actual transmission, propagation, display, or distribution of such material, as well as the facilitation of these acts. Lastly, Section 15(3) penalizes the storage or possession of child pornographic material for commercial purposes. The court also noted that due to the differences among the offences in each subsection, the required degree of culpable mens rea would vary accordingly.
While analysing the provisions of the IT Act, the court held that Section 67B of the Act is a comprehensive provision addressing the punishment against various forms of online exploitation of children. The court further established that Sections 67, 67A, and 67B of the Act serve as comprehensive codes that support the legislative intent to penalize various forms of cyber offenses against children, including child pornography.
Before rendering the verdict in the case, the Supreme Court addressed in detail the impact of child pornography and abuse on children. The court acknowledged the profound effect of child sexual exploitation. The trauma arising out of such abuse can have rippling effect where the child’s dignity is compromised every time such material is shared, viewed, published or transmitted. Such exploitation reduces the child to objects of sexual gratification, hence, it is imperative that comprehensive support is provided to the victims. The court addressed the misconceptions about sex education, recognizing that the concept is often steeped deep in societal stigma and morals. Emphasizing the importance of age-appropriate sex education, the court affirmed that such programs can promote sex positivity and offer essential information about concepts like sexuality, consent, and respect. The court further forbade the use of the term ‘child pornography’ and encouraged the use of ‘child sexual exploitative and abuse material’ (CSEAM) by courts across the country. It is the hope that the term ‘CSEAM’ would place emphasis on the abuse of the children focusing the need for an efficient and robust response.
The court also cited sections 43 and 44 of the POCSO which imposes obligations on the Central and State Government and National Commission for Protection of Child Rights and the State Commission for Protection of Child Rights to ensure implementation of the Act. The court extended this obligation of the government and the commissions to imparting of sex education among general public, in educational institutions. The court also extended the legal obligation on any individual to report the crime to the authorities should they have reasons to believe or knowledge that an offence under the Act could likely be committed.
Legal history would view this judgment as a significant step that sought to adopt a multitude faceted approach on the child rights in the country. By adopting a liberal interpretation of the provisions in the POCSO and IT Acts, the court ensured that all facets of child sexual abuse and exploitation were examined within a legal, social, and legislative context. By acknowledging the gravity of issues related to child rights and dignity, the court provided a clear interpretation of the POCSO Act, taking into account the legislative intent behind its enactment. Crucially, the judgment marked a significant step towards awareness and education by challenging the constraints surrounding sex education. The court emphasized the importance of providing sex education, particularly for school-aged children, as they navigate complex and convoluted concepts such as sexuality and consent in schools and colleges. By broadening the reach of such education to the general public, the court aimed to destigmatize sex education as it is perceived by society.