(This is a guest post by Aaditi Sinha)
Introduction
The case of S. Harish v. Inspector of Police (2024) (“S. Harish”) brings to light critical questions regarding the interpretation and application of Indian law concerning possession of child sexual abuse material (“CSAM”). I will primarily use the term CSAM to mean any material that depicts or gives the impression of children in a sexually explicit or obscene manner. While the term child pornography is also used here when referring to legal provisions, it is preferable to use CSAM, as calling it pornography implies a level of consent that is absent in such material. Further, it is a result of exploitation and sexual abuse that is inflicted on children rather than being the primary reason for it. Calling it porn would disregard the children involved in it as victims and the gravity of their abuse.
In this piece, I critique the judgment for its incorrect application of the law concerning CSAM and argue for bringing consistency in law by criminalising intentional possession of CSAM. I first look at the incorrect application of S.67B of the Information Technology Act, 2000 (“IT Act”) by the court in S. Harish. Secondly, I will point out the inconsistency in those legal provisions, namely the IT Act and the Protection of Child from Sexual Offences Act, 2012 (“POCSO Act”). This section is divided in three whereby in the first subsection I will mention the current Indian law regarding CSAM. The second subsection will deal with vagueness apparent in S.67B and the third subsection will cover the problems arising from S.15 of POCSO. Lastly, I will make a case for criminalization of intentional possession of CSAM.
What S. Harish gets wrong
The case involves the prosecution's assertion that the petitioner downloaded pornographic material related to children onto his mobile phone. During the investigation, the petitioner's mobile phone was seized and analyzed by the Forensic Science Department, which identified two files containing child pornography involving preteen boys. A final report was filed, leading to the court taking cognizance of the offences. The petitioner challenged these proceedings in the Madras High Court. The charges against the petitioner were under Ss. 67-B of the IT act and 14(1) of the POCSO act. The High Court found that no offence was established on either charge. It held that for S.14(1) of POCSO, the necessary requirement was to “use a child for pornographic purposes” which was not fulfilled here as the petitioner had simply watched a video. It was only a “moral decay” on his part, not an illegal act. Furthermore, an offence under S.67B was not made out as according to the court, it does not criminalise downloading and watching child pornography.
This is in ignorance of the law by the court which can be seen by a bare reading of S.67B. It seems that the court only partially looked at the provision and overlooked clause (b) which is reproduced here–
“Whoever,...(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; shall be punished…”
The section thus punishes even browsing and downloading child pornographic material. Hence, it is difficult to understand why the court observed that this provision “does not make watching child pornography, per se, an offence”. In Imran Shabbir Gauri v. State of Maharashtra (2021) with a similar charge under S.67B, the appellant had taken nude photographs of his own daughter on his mobile handset but had not published or transmitted them. Even when there was no fulfilment of requirements in clause (a), i.e., publication or transmission, the court took notice of clause (b) to convict the appellant as he was in possession of implicating material.
The court in S. Harish also referred to Aneesh (2023) to observe that an act done by a person in private is not illegal if that act does not affect or influence anyone. The underlying requirement for this to hold true must be that the act done in private in itself must not be illegal. This case can be distinguished from the present one on many grounds. Firstly, Aneesh dealt with the scope of S.292 of the IPC, i.e., sale, etc., of obscene books, etc., while the present case concerned a special act (POCSO) and a special provision (S.67B of the IT act) for child pornographic material in electronic form. Secondly, while Aneesh was talking about adult porn, here the petitioner was accused of downloading child porn of pre-teen boys. There must be a different standard for the two because while consuming the former, i.e., adult porn, in private, is not illegal per se, the latter, i.e., child porn, is. Although Aneesh held that consensual sex or watching porn in private is well within the legal domain, there are legal provisions in both the IT Act and POCSO that criminalise bare possession of child pornography. The act of the petitioner here was an illegal one in itself and hence, it cannot be argued against on the grounds of privacy.
Inconsistency in Indian law regarding CSAM
At this stage, it is imperative to look at the legal provisions we have regarding CSAM. Currently we have provisions in both IT Act (2000) and POCSO Act (2012). S.2(da) of the POCSO Act defines 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.” S.15 of POCSO makes it an offence to store child pornographic material only if it is done:
(1) with an intention to share or transmit,(2) for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting,(3) for commercial purposes
This is significantly different from S.67B of the IT Act that criminalises various aspects of child pornography listed in five clauses, (a) to (e). Among these clauses, the most relevant one is clause (b) which punishes acts including collecting, seeking, browsing, and even downloading CSAM without any qualification of commercial use. In all, S.67B criminalizes even the possession of CSAM which is clearly different from S.15 of the POCSO which focuses only on the commercial use of CSAM.
Vagueness inherent in S.67B
It is interesting that S.67B, under clause (b), makes it illegal to even possess such electronic material which depicts children in an obscene or indecent or sexually explicit manner. S.67 and 67A which deal with adult pornography do not have the same standard which implies that the legislative intent was for the law to be stricter in the case of child pornography. One problem which might originate from S.67B is the vagueness surrounding what constitutes as, say, “browsing”, because it can be argued that someone who had no intention of watching or downloading CSAM but accidentally did so while surfing the internet and came across a pop-up. To counter this and ensure effective implementation of the law, words like “collect”, “seek”, “browse”, and “download” must be read with a requirement of the basic standard of criminal intention.
Furthermore, such terms must be defined properly so as to not render the law ineffective. Such clear wording of the law can be seen in the 18 U.S. Code § 2252A (5B) which makes it criminal to knowingly possess or access material containing child porn if it is with the intent to view. How to determine that intention is the next problem for the prosecution. Downloading volumes of CSAM and/or regularly accessing a source for the same can more conclusively imply criminal intention. But this becomes difficult to prove in more isolated circumstances.
This also involves a mammoth task for the prosecution and courts to determine whether the person depicted in the material was adult or not, specially when a child is defined as anyone under the age of 18. The person in question might belong in the age group of, say, 16-20, making it difficult to ascertain for sure whether they are an adult or not. Hence, the basis on which this dichotomy between legal possession of adult pornography and illegal possession of CSAM is created, lies on a slippery slope if one considers the problem involved in determining the knowledge or intention of the offender and age of the person present in the material. Though one might ask how the authorities can even trace the private use of CSAM, companies and developers have been on the task to fine tune their detection systems.
How POCSO becomes a roadblock
Since POCSO focuses on storage of CSAM for commercial purposes contrary to bare possession in S.67B of IT act, effectively, an accused who stored child pornographic material for private use will not be held guilty under POCSO but can very well be charged successfully under the IT Act. Hence, it is difficult to understand why a 2012 act, aimed at the welfare of children, added these requirements of commercial use when a 2008 amendment, bringing a special provision through S.67B, did not envisage such a requirement and applied a blanket ban on possession of CSAM.
The preamble of the POCSO bill reads that the act is to “protect children from offences of sexual assault, sexual harassment and pornography” and that it is “necessary for the proper development of the child that his or her right to privacy and confidentiality be protected and respected”. This is because the “best interest and well being of the child are regarded as being of paramount importance at every stage, to ensure the healthy physical, emotional, intellectual and social development of the child”. Then, an important question must be asked: What benefit does it bring to the welfare of children if only that storage of CSAM is criminalised which is for commercial purpose while excluding the one done for private use because both involve a violation of child rights and result from exploitation of children?
It can be argued that the idea behind criminalising commercial use is linked to the extent of harm directly caused by distributing and selling of and profiting from CSAM, which directly fuels the market for this illegal material. For this, it is important to understand how intentional possession of CSAM, even for private consumption, causes harm to the children, the very group that the state is responsible for protecting.
A case for criminalisation of intentional possession of CSAM
Once a material enters the CSAM market, even if one simply watches or stores it without sharing, there is a violation of the rights of the child depicted in that material. The same was reiterated by a High Court in South Africa when the judges observed that possession of the prohibited material creates a trading platform or market for this illegal 'industry'. It reflects the sexual violation of and the impairment of the dignity of a child. Hence, every time that it is viewed there is a revictimization of the child involved. The fact that Indian judges seem to take a lenient view regarding watching and possessing CSAM, as can be seen through a distinction made by Madras High Court between “one time consumer” and those who transmit it in the digital domain, is simply worrying from the perspective of child rights.
CSAM is a permanent record of child sexual abuse and its harm to the child involved is exacerbated by its circulation. The market for such material cannot be effectively dealt with if the law only concerns those who produce and distribute it while leaving out those who consume it. To eradicate the entire market for something illegal and as heinous as CSAM, there is a need to criminalise its demand as well which actually encourages its production.
The moral attitude that the law ends up promoting by not criminalising intentional possession for private use is that it is considered “normal” to consider children as sexualised objects that can be exploited for personal sexual satisfaction. This is completely contrary to the duty that the state takes upon itself, i.e., to protect children, as it is empowered to make special provisions for children under Art.15(3) of the Constitution. India, being a signatory to the UN Convention on Rights of the Child, has ratified the Second Optional Protocol under it. The protocol mentions the growing availability of child pornography on the Internet and under Art. 3 calls for worldwide criminalization of the production, distribution, exportation, transmission, importation, intentional possession and advertising of child pornography (emphasis added). Not only that, the statement of object and reasons of POCSO amendment bill mentions the increasing number of cases of child abuse and child pornography which can be further substantiated with NCRB data on crimes against children. It is harrowing to note that crimes against children have been on a steady rise and there has been an increase in demand for CSAM as well. The fact that this continues to exist even where there are operations like 'Megha Chakra' by CBI and resultant raids speaks of the gravity of the problem.
No comments:
Post a Comment