Child Pornography in India

By Shivangi Bhatawadekar

The porn industry has become a multi-million- dollar industry. India has emerged as one of the major producers and consumers of porn in the world. Child pornography depicts any minor engaging in, appearing to be engaging in or images that represent engaging in sexually explicit conduct.^[1] Child pornography is also a major part of the porn industry and is widely prevalent in India. Many efforts have been made to limit and finally prohibit such depiction of children. Some laws were made too.

Legislations regarding Child pornography in India

The following laws are present in the country regarding the issue of child pornography:

1. Sec 292 and 293 of the IPC prohibit pornography in any form. Sec 293 specifically talks about pornographic exposure to young children and prohibits it. The main concept dealt under these two sections is obscenity. What is obscene and what is not is completely guided by the morals and ethics of the society. The reason to penalize such material is to safeguard the decency of the society and prevent corrupt ideology from prevailing.
2. Sec 13 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 prohibits the use of child for the purpose of sexual gratification and sec 14 of the same Act gives the punishment for such act. The material could be graphics, print, electronic or any other form. Sec 15 of the POCSO Act penalizes the storing of any pornographic material involving a child. The aim of introducing such sections is to prevent and penalize exploitation of children.
3. The Information and Technology Act, 2000 also has a provision against child pornography. Sec 67B of the said Act talks about punishment for publishing or transmitting material depicting children in sexually explicit act, etc. in electronic form.

In all the above-mentioned legislations, children mean people who have not completed 18 years of age.

The interpretation of the law

The laws prohibiting and penalizing child pornography have been a debatable topic during the argument in courts. As there is no explicit definition of child pornography given by the IPC or any other Act, what constitutes child pornography and what does not has always been a question before the courts. What is moral, ethical and acceptable is always a challenge with the changing times.

In Ranjit D Udeshi vs State of Maharashtra^[2], the appellant was a book seller who sold a copy of “Lady Chatterley’s Lover” and was convicted under sec 292 of the IPC. The appellant defended, saying that he has freedom of speech and expression guaranteed to him under article 19 (1) (a) of the Indian Constitution and that the book was not obscene as a whole. The Court used the Hicklin test to check if the alleged book can “deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall”. The Court held that the book was found obscene and dismissed the appeal.

This case was important for two reasons. One, it re-stated that freedoms given by the Constitution come with certain restrictions for the sake of public morality. Two, it gave a clear direction as to what would be considered obscene and what not (usage of the Hicklin test).

In Avnish Bajaj vs State^[3], popularly known as the DPS MMS Scandal Case, the issue was regarding the liability of the offence. A student had listed MMS video clips for sale on a website. The appellant was the director of the website. As the student later absconded, the criminal liability was put on the appellant. The court observed that there was a prima facie case under sec 292 (2) (a) and sec 292 (2) (d) IPC. It also held that IPC does not recognize the concept of automatic criminal liability attaching to the director of a company. So, the petitioner was absolved of his liability.

The concept of public morality and freedom of speech and expression came into light again in the recent case of Fathima A.S. vs. State of Kerala^[4]. A social activist posted a video of her children painting her semi-nude body. A criminal action was sought against her. In her appeal for anticipatory bail to the Supreme Court, she stated that her aim was to spread a message to women to not be shy of their bodies and also to ensure sex education to her children. The Supreme Court rejected her anticipatory bail and validated the decision of the Kerala High court.

The court, in its reasoning, stated that the issue was not regarding the children painting the appellant’s semi-nude body. It was the publishing of such a video on a social platform. Posting such a video on social media leads to sexual gratification, something prohibited by the IPC.

The Growing Concern

In spite of legislations being into force, the issue of wide prevalence of child pornography is still there. There are about 1,16,000^[5] queries everyday related to child pornography. The increasing demand for child pornography also leads to an increase in other crimes like child trafficking, sex tourism, forced prostitution etc. In the current times of pandemic, the demand for child porn has increased. According to a report by the India Child Protection Fund^[6]:

1. Traffic on websites like Pornhub has increased by 95% between 24^th and 26^th March 2020, which was the beginning of the nationwide lockdown^[7].
2. The increase in viewership has been linked to Pornhub making its premium content free to viewers during the lockdown.
3. The search for keywords like ‘child porn’, ‘sexy child’ and ‘teen sex videos’ has also spiked^[8].
4. About 18% individuals demanded violent child pornographic content^[9].

All these statistics suggest the increase of paedophilic mentality in the society. By easier access to more Child Sexual Abuse Material (CSAM), the unethical mentality is triggered. This in turn endangers the safety of children, in some cases, even in their homes. This spike in viewership of CSAM has led to increasing child abuse at homes. The Childline India Helpline received more than 92,000 SOS calls^[10] regarding protection from abuse and violence just in the beginning phase of the lockdown.

The hike in demand of child pornography has some serious repercussions also. The lockdown period has forced many into destitution and poverty, Poor families are vulnerable to do anything to make ends meet. They may, knowingly or unknowingly, push their children into the prostitution and pornography industry. Poor households in rural areas lack awareness regarding this issue. They tend to be soft targets of violators.

The victims of production of child pornography can be children coming from urban areas too. Teenagers are active on social media. There have been instances where images of students were taken from social media handles, they were morphed and uploaded on porn websites.

The ill effects of such a rise are adverse. No doubt sexual crimes and offences against children will rise. Consequentially, trafficking, prostitution etc. would also remain. It will also promote aggressive and exploitative behaviour amongst the viewers.

The Road Ahead:

The rise in child pornography is something to be worried about. Lack of awareness is as much responsible as prevalence of exploitation. Children need to be taught about sexual exploitation. There needs to be more awareness on the redressal as well. Victims must know whom to reach out to. In the current times of lockdown, domestic sexual abuse must not be ignored and the paedophilic mentality must be controlled. Children, from all backgrounds, must be protected against this evil.

References:

1. The Protection of Children from Sexual Offences Act, 2012, Act 32 of 2012. https://wcd.nic.in/sites/default/files/POCSO%20Act%2C%202012.pdf
2. Child Sexual Abuse Material in India, Report on Demand for child pornography & pilot deterrence using artificial intelligence, India Child Protection Fund, April 2020. https://7d53df5d-623a-479f-89b5-c88a0757a721.filesusr.com/ugd/aeb656_0247bfeedc04490b8e44e4fba71e3ad7.pdf
3. Milind Rajratnam, Combating Child Pornography in India, JURIST-Student Commentary, May 14, 2020. https://www.jurist.org/commentary/2020/05/milind-rajratnam-combating-child-pornography/
4. Hemani Sheth, India Lockdown: Online child pornography consumption spikes in India, says ICPF, The Hindu Business Line, April 14, 2020. https://www.thehindubusinessline.com/info-tech/india-lockdown-online-child-pornography-consumption-spikes-by-in-india-says-icpf/article31337221.ece#
5. Shashank Shekhar, India has one of world’s worse rates of online child pornography despite crackdown, cyber experts reveal, Mail Online India, September 5,2017. https://www.dailymail.co.uk/indiahome/indianews/article-4855694/India-world-s-worse-rates-online-child-pornography.html

1. Article 9, Convention on Cybercrime, Council of Europe, Budapest, 23.XI.2001 ↑

2. 1965 AIR 881, 1965 SCR (1) 65 ↑

3. (2005) 3 CompLJ 364 Del ↑

4. 2020 SCC Online Ker 2827 ↑

5. India has one of world’s worse rates of online child pornography despite crackdown, cyber experts reveal, Shashank Shekhar, Mail Online India, 5 September 2017. ↑

6. Child Sexual Abuse Material in India, Report on demand for child pornography and pilot deterrence using artificial intelligence, India Child Protection Fund, April 2020. ↑

7. Ibid. ↑

8. Ibid. ↑

9. Ibid. ↑

10. Ibid. ↑

Read Disclaimer