Updated: Sep 1, 2020
The increase of Covid-19 cases is not the only challenge that is being combatted by the country. An additional moral and legal delinquency being witnessed during this lockdown phase is the alarming rise of demand for child pornography. According to ICPF, there was a sudden spurt of 95% traffic on porn websites from India. It was further brought into notice that searches involving terms like, ‘child porn’, ‘sexy child’, ‘teen sex videos have increased as compared to the pre-coronavirus phase. This has increased the threat of sexual predators more than ever and has also raised this question: Do the laws carry the requisite deterrence and authority to create a legal fabric that instils a sense of fear in the minds of predators? The following article while identifying the meaning of child pornography and the laws on an international and national level tries to identify the loopholes that have held back our country from eliminating this crime.
Child Pornography- Oxymoron of Innocence and Debasement.
Section 2(1)(d) of the POCSO Act, 2012 defines ‘child’ as “any person below the age of eighteen years”. In a recent amendment made in 2019, the definition of ‘child pornography’ was also included in the Act. It is defined as, “any visual depiction of sexually explicit conduct involving a child which includes a photograph, video, digital or computer-generated image indistinguishable from an actual child, and image created, adapted, or modified, but appear to depict a child”. The word ‘pornography’ originates from Greek literature which means ‘writing about prostitutes’.
This disturbing combination of two words, also often referred to as “Kiddie Pornography”, goes deeper as an essential and rather disturbing part of the global Sex Trade market. Children are assumed to be innocent souls incapable of determining right or wrong. This comes as a benefit to the Sex Predators ultimately subjecting these children, mostly young teenagers, to sexual abuse, perversions, rape, paedophilia, and other horrific ventures to the extent of murder. In most of the cases, children are introduced to this pornography industry through coercion. Most runaways and children of abusive homes tend to find solace in drugs and alcohol. The toxic endeavours adopted by them force them to turn to pornography through pimps, sex operators as a way of making money, ultimately turning them into sex slaves. Apart from this, numerous physical and mental hardships come along with these coercive activities. Young female prostitutes in Bombay are seen as the primary carrier of the AIDS virus and, as such, the most responsible for its spread throughout India. The rate of sexually transmitted diseases such as herpes, chlamydia, crabs, gonorrhoea, and syphilis is high among prostituted children worldwide. Psychological hardships such as severe depression, suicidal thoughts, low self-esteem, and other mental health problems are faced by these prostitutes’ children due to incapability of returning to natives' homes and the vicious cycle of debts on the prostitutes.
Understanding the Deficiencies of International Law on Child Protection.
Article 1 of the Convention on Child Rights defines “child” as a person under the age of eighteen. Countries across the world identify different legal age of children. Issues like that of legal age, drinking age, voting age, etc. also play a vital role while deciding upon the year of the age that distinguishes between adulthood and the minor age. This differentiation becomes a daunting issue while developing methods to combat child pornography at an international level. The convention fails to recognize the countries that do not consider eighteen as an acceptable age of adulthood. The Convention employs a rather ambiguous language with idealistic and overly ambitious proses making the convention as a universal source of child rights questionable. Article 2(c) of Optional Protocol on the Sale of Children, Child Prostitution, and Child Pornography defines child pornography and Article 3(1) mandates the state parties to criminalize child pornography. While this the protocol provides a sophisticated and comprehensive framework of regulating child pornographic and other offences, the issue lies at the enforcement as it is dependent on the countries in a way of fully adopting the protocol. Article 10(1) highlights the need for international cooperation. This requirement seems a far-reaching dream because, firstly, the technological advancements in every country is not uniform, secondly, there is a lack of understanding and consolidated efforts on international level that promotes cooperation in this matter.
Indian Laws on Child Protection- Effective or Empty?
Section 293 of the Indian Penal Code criminalizes sale, distribution, exhibition, circulation, etc. of any obscene material to any person below the age of twenty years making it a cognizable offence. An amendment made to the IT Act, 2000 in 2008 came across as a crucial step for child pornography laws as it incorporated the provision of Section 67B, which provides a specific provision for child pornography. Further, the POCSO Act, 2012, which provides an illustrative legal recourse to child pornography under Article 14, as amended in 2019. This manifestation led to the inclusion of the definition of child pornography, increased the punishment for certain offences regarding child pornography, and added two more offences in relation to the storage of pornographic material involving children.
The IT Act and the POCSO Act lay down a promising legal framework for child pornography with requisite deterrence and definitions is included in the various enactments and governmental efforts being made regarding the issue. The setback of its actual implementation in the Indian context is primarily lack of digital and technological advancements. It becomes difficult to identify and remove the child pornographic material from a huge and widespread pornography industry and due to easy access of the internet to even a five-year-old child. Further, the identification of source and distributor of this material becomes difficult due to the advanced technical know-how of these culprits. The intermediaries fail to cooperate in reporting the activities even after a legal duty being cast upon them through the POCSO Act. The government fails to take stricter actions in this regard due to the lack of transparency of the technical capabilities and different systems being employed in different countries to run these internet websites.
The police in these matters adopt a rather insensitive attitude while handling these cases. So much so, the Karnataka HC identified it as one of the main issues regarding child pornography this particular attitude is a result of the lethargy of the police personnel and the taboo of the topic of sex or pornography in India. This makes the police reluctant in handling the case with due efficiency and sensitivity. The implementation of these laws becomes further difficult because these cases are difficult to trace unless reported. In addition to the difficulty of measuring the spread of child pornography, children, especially teenage girls, refrain from reporting the offences as the social norms tag it as a disgrace to their character. A combination of these social and legal deficiencies make it difficult to combat child pornography issues in India.
As mentioned above, child pornography is a moral issue along with a legal offence. Though the steps taken by the legislation are appreciated in its entirety, some lacunae need to be catered to. An effective set of guidelines is required for the implementation of these laws on an international level. This being a global issue, international cooperation with other jurisdictions and agencies is paramount to combat this offence that runs on a global level in hidden masks of innocence. This can be done with an effective and comprehensive single legal framework governing the fundamental lacunas of child pornography laws. Understanding the technological aspect of child pornography will make it easier to identify sexual predators online. As suggested by the Karnataka HC, a Standard Operating Procedure should be issued on a national level to deal with such sensitive cases. The central authority on the matters related to this need to be strong and authoritative. Additionally, efficient communication setup is required so that the reporting of these issues becomes wider. To make a social difference, sex education, which is often considered a taboo in our country, should be viewed as a crucial part of our education system. The teachers and parents instead of hesitating on imparting the knowledge should openly and effectively clear the doubts of the children as the curiosity will eventually land them to unhealthy and toxic alternatives like pornography. Society and the law need to come together to churn out the sexual predators that are harming the innocence of children and promoting a world of fear and vulnerability.
The article has been written by Favi Singla and Pankaj Jhajhra who are students at Gujarat National Law University, Gujarat.