SUBJECT CODE: 802(A) B.A.LL.B. (Hons.
“A CASE STUDY ON CHILD PORNOGRAPHY”
Submitted By Submitted To
Himadri Badoni Dr. Amit Guleria
R.No. 2001037 Asst. Prof. of law
Section A DBRANLU
Group D
Submitted On: 20th May, 2024.
SUBJECT CODE: 802(A) B.A.LL.B. (Hons.)
TABLE OF CONTENTS
ACKNOWLEDGEMENT ....................................................................................... I
1. INTRODUCTION .............................................................................................1
2. CASE STUDY ....................................................................................................2
3. LEGAL FRAMEWORK ...................................................................................4
3.1. POCSO Act, 2012. ........................................................................................................... 4
3.2. IT Act, 2000 ..................................................................................................................... 5
3.3. Indian Penal Code, 1860 ................................................................................................. 5
3.4. Bhartiya Nyaya (Second) Sanhita, 2023 ........................................................................ 5
4. LOOPHOLES ....................................................................................................6
5. SUGGESTED AMENDMENTS .......................................................................7
6. IMPACT OF CHILD PORNOGRAPHY ........................................................8
6.1. Psychological and Emotional Impact ............................................................................. 8
6.2. Physical Health Consequences ....................................................................................... 8
6.3. Social and Educational Challenges ................................................................................ 9
6.4. Societal Impact ................................................................................................................ 9
7. WAY FORWARD ...............................................................................................9
SOURCES REFERRED ........................................................................................ II
ANNEXURE A ...................................................................................................... III
ANNEXURE B ...................................................................................................... IV
SUBJECT CODE: 802(A) B.A.LL.B. (Hons.)
ACKNOWLEDGEMENT
I would like to express my gratitude towards my Cyber Law professor, Dr. Amit Kumar for
allowing me to research on the chosen topic. While working on this project, I not only enhanced
my knowledge but also got a different perspective on the amount of child pornography in India.
I am also grateful to my parents and Hon’ble Vice-Chancellor of this institution for providing me
with adequate means to complete the project.
Sincerely,
Himadri Badoni
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1. INTRODUCTION
Child pornography is a global issue that affects many countries, including India. It refers to any
visual depiction of sexually explicit conduct involving individuals who are minors, generally
under the age of 18. This exploitative material can include images, videos, or other visual
representations of children engaged in sexual activities or poses.1
It’s crucial to understand that consuming or sharing child pornography perpetuates the cycle of
abuse and can lead to severe psychological and emotional consequences for the children
involved. Recognizing and reporting instances of child pornography is essential to protecting the
vulnerable and holding perpetrators accountable. The advent of the internet and technological
advancements has made it easier for perpetrators to produce, disseminate, and access child
pornography, amplifying the scale and complexity of the problem.
The production and distribution of child pornography in India involve various stakeholders,
including individuals, criminal networks, and organized criminal groups. Due to the clandestine
nature of this illicit activity, it often operates in the shadows, making it challenging for law
enforcement authorities to track down and prosecute offenders effectively. Moreover, the
anonymity provided by the internet enables offenders to evade detection and continue their
exploitative activities with impunity.2
In recent years, with the proliferation of digital technology and the internet, the prevalence of
child pornography has grown, posing significant challenges for law enforcement agencies and
child protection organizations in India. (Annexure A)
Furthermore, during the coronavirus lockdown period, there was a massive surge in the search of
child pornographic content on the internet. (Annexure B)
Figure 1., shows the increased number of child pornographic content year-wise.
1
Tyler RP, Stone LE, “Child pornography: Perpetuating the sexual victimization of children. Child Abuse and
Neglect” 9 SSRN pp.313-318 (1985).
2
Pavan Duggal, Textbook on Cyber Law (Universal Law Publishing, Delhi, 2nd edn. 2016).
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Fig.1. Year-wise data of child pornography.
This case study aims to explore the landscape of child pornography in India, including its impact,
legal framework, challenges, and the efforts made to combat this heinous crime.
2. CASE STUDY
FACTS
State of Indiana is a democratic republic country. Its Constitution is its supreme law and all the
other laws are based on its Constitution. In the recent years, the number of child pornography
cases has increased in the country and thus, giving rise to more disputes.
Recently, the High Court of Nexa, (a state in Indiana) has given a judgement pertaining to
downloading of pornographic material. This has several loopholes and has been critically
analysed in the present case study.3
3
Ibid.
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In the prosecution’s case, a letter from the Additional Deputy Commissioner of Police on crimes
against women and children was received. It was indicated in the letter that the petitioner had
downloaded child-related pornographic files to his mobile phone. After receiving the letter, the
second respondent registered a First Information Report in Crime No.03 of 2020 on January 29,
2020, for offenses under Sections 14(1) of the Protection of Children from Sexual Offenses Act,
2012 and 67-B of the Information Technology Act, 2000.
The petitioner’s cell phone was seized throughout the course of the investigation and transferred
to the forensic science department for examination. The analyst provided a report that named two
folders in particular that included child pornographic material. Wherein, children below teen
were shown having sex with an adult woman or a girl in those two films. Based on the materials
obtained during the investigation, a final report was prepared and submitted to the lower court,
where it was filed under Spl.SC.No.170 of 2023. Section 67-B of the Information Technology
Act of 2000 and Section 14(1) of the Protection of Children from Sexual Offenses Act of 2012
were the offenses for which the lower court granted cognizance. (Original Case Study-Annexure
C)4
Aggrieved by the same, the present petition was put before the High Court of Nexa.
NOTE- Laws of Indiana are pari materia to the laws of India.
‘India’ may be used instead of ‘Indiana’ throughout the case study.
JUDGEMENT
It was held by the Hon’ble High Court of Nexa that: “In order to constitute an offence
under Section 67-B of Information Technology Act, 2000, the accused person must
have https://www.mhc.tn.gov.in/judis published, transmitted, created material depicting children
in sexual explicit act or conduct. A careful reading of this provision does not make watching a
child pornography, per se, an offence under Section 67-B of Information Technology Act, 2000.
Even though Section 67-B of Information Technology Act, 2000, has been widely worded, it does
4
S.Harish vs The Inspector Of Police, 2024 SCC OnLine Mad 2.
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not cover a case where a person has merely downloaded in his electronic gadget, a child
pornography and he has watched the same without doing anything more.
The Kerala High Court had an occasion to deal with the scope of Section 292 IPC. That was a
case where a person was caught watching porn videos and a First Information Report came to
be registered against him. While dealing with this issue, the Kerala High Court held that,
watching an obscene photo or obscene video by a person by itself will not constitute an offence
under Section 292 IPC. This is in view of the fact that this act is done by the concerned person in
privacy without affecting or influencing anyone else. The moment the accused person tries to
circulate or distribute or publicly exhibits obscene photos or videos, then the ingredients of the
offence starts kicking in.”
Therefore, the court unanimously ruled that, the materials placed before the Court do not make
out an offence against the petitioner under Section 67-B of Information Technology Act, 2000
and Section 14(1) of Protection of Child from Sexual Offences Act, 2012.
3. LEGAL FRAMEWORK
India has a comprehensive legal framework to address the issue of child pornography, focusing
on both prevention and stringent punishment for offenders. The primary laws and regulations
include the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the
Information Technology (IT) Act, 2000. Additionally, various provisions of the Indian Penal
Code (IPC) also come into play for related offenses.
3.1.POCSO Act, 2012.
The POCSO Act is a crucial piece of legislation specifically designed to protect children from
sexual offenses, including pornography. Key provisions related to child pornography under the
POCSO Act include:
• Section 13: Defines child pornography and provides the legal basis for prosecution. It
includes any form of media showing children in sexually explicit conduct.5
• Section 14: Prescribes punishment for using a child for pornographic purposes. The
punishment ranges from five to seven years of rigorous imprisonment and fines.6
5
Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s.13.
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• Section 15: Deals with the storage of child pornography materials for commercial
purposes, prescribing imprisonment up to three years and fines.7
3.2.IT Act, 2000
The IT Act, 2000 is a comprehensive legislation enacted in India to address legal issues related to
digital communications and e-commerce. This Act aims to provide a legal framework for
electronic governance by recognizing electronic records and digital signatures. It also seeks to
address cybersecurity concerns, prescribing penalties for various cybercrimes, including hacking,
identity theft, and the distribution of obscene or sexually explicit content, particularly involving
children.
• Section 67B: This provision specifically criminalizes publishing, transmitting, or
creating electronic text, images, or videos depicting children in sexually explicit acts. The
penalties include imprisonment up to five years and a fine of up to 10 lakh rupees for the
first conviction, with higher penalties for subsequent convictions.8
3.3.Indian Penal Code, 1860
The Indian Penal Code, lays down provisions for prosecution as follows:
• Section 292: Penalizes the sale, distribution, and exhibition of obscene materials. While
not specific to child pornography, it is sometimes invoked in related cases.9
• Section 293: Deals with the sale and distribution of obscene materials to young persons
under 20 years of age.10
3.4.Bhartiya Nyaya (Second) Sanhita, 2023
The new criminal law also mentions pornography and lays down punishment for exploitation of
children for pornographic purposes.
6
Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s.14.
7
Protection of Children from Sexual Offences Act, 2012 (Act 32 of 2012), s.15.
8
The Information Technology Act, 2000 (Act 21 of 2000), s. 67B.
9
The Indian Penal Code, 1860 (Act 45 of 1860), s. 292.
10
The Indian Penal Code, 1860 (Act 45 of 1860), s. 293.
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• Section 95-It specifically criminalizes the act of hiring, employing, or engaging a child to
commit any offense. The provision mandates a punishment of imprisonment for a term
not less than three years and up to ten years, along with a fine. If the offense is indeed
committed, the individual responsible for hiring, employing, or engaging the child will be
punished as though they committed the offense themselves. This section explicitly
includes the use of children for sexual exploitation or pornography within its ambit.11
Furthermore, Section 294 and Section 295 of this Act, lay down the same provision as Sections
292 and 293 of IPC, regarding distribution of obscene materials.
4. LOOPHOLES
• Incomplete Interpretation of Section 67B.
The investigation’s findings are adequate to invoke Section 67B(b) of the IT Act, 2000.
However, the High Court ruled that for an offence to be established, the accused must
have published, transmitted, or created material depicting children in sexually explicit
acts or conduct. Consequently, the High Court arrived at its decision without fully
considering all of Section 67B and by interpreting sub-clause (b), which specifically
describes the accused’s actions.
• Incomplete Reference to Kerela HC’s Judgement
The High Court of Nexa, relied on a case the ratio of which does not apply in the present
case study. The Kerela High Court Judgement pertained to watching obscene photos or
videos and not downloading.
• Negligence of Constitutional Validity of Section 67B
A case decided by the HC of Kerala in Aneesh vs State of Kerala, 202312 did not pertain
to child pornography. While watching adult pornography in privacy has been held as not
to be an offence under Section 292 of the IPC (both by the HC of Kerala and the Supreme
Court of India), downloading sexually explicit material pertaining to children is clearly
an offence under the IT Act.
In none of the cases so far has the constitutionality of Section 67B(b) been challenged
and its vires held unconstitutional.
11
Bhartiya Nyaya (Second) Sanhita, 2023 (Bill No. 173 of 2023), s.95.
12
Aneesh v. State of Kerela, Crl. MC 8981/2023.
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• Excessive Reliance on Section 482 of Cr.P.C.
The Supreme Court has laid down certain guidelines in State of Haryana vs Bhajan Lal
(1992)13 to exercise powers under Section 482 of the CrPC (or extraordinary powers
under Article 226) including that such powers could be used where the allegations made
in the FIR do not, prima facie, constitute an offence or make out a case against the
accused.
In the instant case, the High Court, outweighed its powers as it quashed judicial
proceedings of a case which prima facie constituted an offence.
5. SUGGESTED AMENDMENTS
i. Amendment to the Protection of Children from Sexual Offences (POCSO) Act,
2012: Expand the definition of child pornography to include any form of digital
representation or depiction of children engaged in sexual activities or explicit conduct.
ii. Amendment to the Information Technology (IT) Act, 2000: Increase the penalties for
offences related to child pornography, including higher fines and longer imprisonment
terms. Introduce mandatory minimum sentences for offenders involved in the production,
distribution, or possession of child pornography.
iii. Amendment to the IT Act, 2000: Empower regulatory authorities to swiftly ban
websites, forums, or online platforms that host or facilitate the distribution of child
pornography. Impose strict penalties on internet service providers failing to comply with
directives to block access to such platforms.
iv. Amendment to the Criminal Procedure Code (CrPC): Introduce provisions for
expedited investigation and trial of cases related to child pornography. Establish
specialized investigation units equipped with digital forensic capabilities to handle cases
of online child sexual exploitation.
v. Amendment to the POCSO Act, 2012: Implement proactive measures for preventing
the grooming and exploitation of children for pornographic purposes, including
awareness campaigns in schools and communities. Mandate internet safety education
13
State of Haryana v. Bhajanlal, AIR 1992 SC 604.
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programs in educational institutions to educate children about the dangers of online
exploitation and how to report suspicious activities.
vi. Amendment to the Extradition Act, 1962: Strengthen provisions for extradition of
individuals involved in the production or distribution of child pornography across
international borders. Enhance cooperation with international law enforcement agencies
to combat transnational networks engaged in child exploitation.
vii. Amendment to the National Commission for Protection of Child Rights (NCPCR)
Act, 2005: Allocate resources for the establishment of specialized support services and
rehabilitation programs for child victims of pornography. Ensure comprehensive legal aid
and counseling services are available to victims and their families throughout the legal
proceedings and recovery process.
viii. Amendment to Indian Penal Code and BNS 2023: Add provisions that directly and
solely deal with child pornography, especially pertaining to the cyber space.
6. IMPACT OF CHILD PORNOGRAPHY
Reports and surveys in Indiana have shown that Child pornography has severe and multifaceted
impacts on both individual victims and society at large. The issue encompasses psychological,
social, and legal dimensions, with significant consequences for children’s well-being and broader
societal health.
6.1. Psychological and Emotional Impact
Child pornography and sexual abuse lead to profound psychological and emotional harm.
Survivors often suffer from depression, anxiety, post-traumatic stress disorder (PTSD), and other
mental health issues. They may experience feelings of shame, guilt, and worthlessness, which
can affect their self-esteem and self-image. These emotional challenges can hinder their ability to
form healthy relationships and maintain social connections, leading to isolation and difficulties
in intimacy.14
6.2.Physical Health Consequences
The trauma associated with child sexual abuse can also manifest in physical health problems.
Survivors might experience chronic pain, gastrointestinal issues, and other stress-related
14
Palak Nigam, “Child Pornography In India: A Study From Socio-Legal Perspectives”, 36 Manupatra 111 (2022).
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ailments. The long-term health impacts are significant, as the abuse can disrupt the body’s stress
response systems, leading to adverse health outcomes later in life.15
6.3.Social and Educational Challenges
The repercussions of child sexual abuse extend into educational and occupational realms.
Victims may struggle with concentration, motivation, and interpersonal skills, which can impede
their academic and career achievements. This often leads to a cycle of economic disadvantage
and reduced opportunities for social mobility.16
6.4.Societal Impact
The societal impact of child pornography is also severe. The normalization and proliferation of
such content contribute to a culture of exploitation and abuse. Children exposed to or involved in
pornography can suffer long-term developmental and behavioral issues, impacting their ability to
integrate successfully into society as healthy adults. Furthermore, the accessibility of child
pornography online exacerbates these issues, necessitating robust technological and regulatory
measures to combat its spread.17
7. WAY FORWARD
1. Strengthening International Cooperation: Enhancing cooperation with international
bodies and other countries can improve the sharing of information and best practices,
helping to track and prosecute offenders across borders more effectively.
2. Investing in Technology and Training: Increasing investments in technology and
specialized training for law enforcement can improve their ability to detect, investigate,
and prosecute cybercrimes, including those involving CSAM.
3. Raising Public Awareness: Conducting widespread awareness campaigns can educate
the public about the dangers of child pornography, the importance of reporting, and the
legal protections available to victims.
4. Implementing Robust Reporting Mechanisms: Establishing and promoting accessible
and anonymous reporting mechanisms can encourage more victims and witnesses to
15
Dr. J.S. Patil, “A Study of Child Pornographic Responses in India and Its Impact”, 6 JETIR 25 (2019).
16
Jonathan Coopersmith, “Pornography, Technology And Progress”, 4 JSTOR p.94 (1998)
17
Ibid.
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come forward, thereby aiding in the detection and prevention of child exploitation.
Addressing the challenges requires a multifaceted approach involving technological,
legal, and social interventions to effectively combat child pornography in India. Although
the situation has worsened however, a collective effort on the part of all the three organs
of the Government shall better the situation.
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SOURCES REFERRED
1. BOOKS
Pavan Duggal, Textbook on Cyber Law (Universal Law Publishing, Delhi, 2nd edn.
2016)
2. WEBSITES
www.scconline.com
www.manupatra.com
3. JOURNAL
JETIR
JSTOR
SSRN
Manupatra
4. NEWS WEBSITES
Cnn.com
Thehindu.com
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ANNEXURE A
Based on a report by Child Protection Fund, this map shows the hotspot areas where demand for
child pornography is maximum. It can be seen that the demand is more in developed urban cities
than tier 2 cities in India.
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ANNEXURE B
Source: CNN India News
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