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Acknowledgement
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INTRODUCTION

By pornography we generally mean the depiction of any content, whether printed or visual, that
contains manifest narration, demonstration or display of sexual activities, sexual organs or any other
obscene material with an intention to trigger the sexual excitement of the viewers. We call it child
pornography when children are included in the said activity. Although, merely a prefix has been
added to the term ‘pornography’ in this case, but this little prefix increases the dreadfulness of this
term horrendously.

The words ‘child’ and ‘sexual activity’ together already sound so wicked, and then displaying it to
people who are watching it to arouse their sexual desires only make it worse. Consequently, such
deeds provoke the exploitation, trafficking and violence towards children. This is the reason that
child pornography is considered so heinous

Defining child pornography

In India, the term ‘child pornography’ has been defined under the Protection of Children from Sexual
Offences Act, 2012 (POCSO). According to section 2(da) of the POCSO Act, child pornography is
any kind of visual display of overt sexual activity that engages a child. Such content may be an
image, a video or any computer-generated picture which cannot easily be differentiated from a real
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child. It includes all those images which shows a child to be involved in such activities whether it is
created, adapted or modified.

To be very specific, section 2(d) of the POCSO Act defines a ‘child’ to be any person who has not
attained the age of eighteen years.

On an international level, there is one Optional Protocol on the sale of children, child prostitution and
child pornography (OPSC) that deals with the issue of child pornography. According to Article 2 of
the OPSC, child pornography includes the depiction of a child involved in either real or simulated
explicit sexual conduct as well as revealing of sexual body parts of a child mainly with sexual
motives.

Reasons of increasing child pornography

There has been a rapid increase in the sharing of child porn over the years all around the world. In
1998, the total reported cases of child sexual abuse imagery were over three thousand and merely
after a decade, it turned into more than one lakh cases. This number crossed one million for the first
time in the year 2014. Later in 2018, the number of cases that were reported increased to 18.4 million
which was found to be more than one-third of the total cases ever reported. In 2020, 21.7 million
were reported which was estimated to be a 28% increase over 2019. The high demand of child porn
can clearly be acknowledged from these horrific statistics, but the question is why is it so?

The reasons for high demand of child porn are different for different age groups. The primary
viewers among the adolescents are those who are nearly 18 to 21 years of age and have sexual
dysfunction which means they have difficulty in maintaining erections and achieving orgasms. On
the other hand, many children or adolescents watch it merely to fulfil their curiosities or fantasies.

However, in case of older people, the majority of the persons watching child porn are either
paedophiles or hebephiles or ephebophiles. These are the people attracted or sexually oriented or
interested towards children or mid to late adolescents. It is surprising to know that in the view of
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many of them, it is their love towards those children. Other than these, there are also many sadists
who just take pleasure in watching those children in pain while they are being molested.

All these rising demands of child porn from these people would be ineffective if there was no means
to fulfil them in the first place. Here comes the role of the internet which has become the nucleus of
sharing such materials making them more popular. The advancement of digital technology and
internet expansion has contributed a lot in shooting up of the child pornography market. The videos
are easily available, easily affordable and they even conceal the identity of the viewer, hence
increasing the number of people watching the same.

Impact of child pornography

It is quite rare that sexual activity in child porn is consensual. So, if any image, video or any other
content showing sexually explicit conduct involving a child is created, it is very likely that real
sexual abuse or harassment was caused while making such material. Also, there are high possibilities
that such abuse has been done more than just once. More the demand for child porn increases, more
such content is created, and hence, more crimes against children increases.

This not only deteriorates the child victim’s mental and physical well-being, but also leaves a grave
impact on society. When such an abuse or molestation is committed with a child, he/she goes through
a huge trauma and it takes a lot to come out of it, but the act of pornography, i.e., posting or
distributing that recording online aggravates the situation and makes it impossible for that child to
move on ever. Fear, humiliation, helplessness, lack of confidence are some of the things that would
follow that child forever because he/she knows that somewhere on the internet those pictures or
videos are circulating.

Legislative provisions combating child pornography in India

Under Protection of Children from Sexual Offences Act, 2012 (POCSO)

The POCSO Act makes the act of using a child for pornographic purposes punishable. Now what all
acts constitute to be usage of a child for pornographic purposes have been explained in section 13 of
the Act. According to the said section, any person who uses a child for the purpose of sexual
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gratification through any kind of media either printed or electronic, no matter whether it was aimed
for distribution or just personal use is said to have used the child for pornographic purposes. It
includes the display of a child’s sexual organs, indecent representation of a child, and engaging a
child in true or simulated sexual activity where penetration is not a mandatory condition.

Section 14 of the POCSO Act punishes any person committing an offence u/s 13 with an
imprisonment for at least 5 years and fine. And if the person is convicted for the same offence again,
then he would be punishable with imprisonment for a minimum of 7 years and fine. It further
provides that if a person is committing the offence of using child for pornography along with offence
given under sections 3 or 5 or 7 or 9 by getting himself involved in the pornographic act, then such a
person shall be punished under section 4 or 6 or 8 or 10 respectively in addition to section 14 of the
POCSO Act.

Furthermore, section 15 of the POCSO Act provides punishment for storing or possessing
pornographic material that involves a child in three different situations. Firstly, if it has been done to
share such material so as to commit child pornography then it is punishable with a minimum fine of
Rs. 5000, and if such an act is repeated then with a fine not less than Rs. 10,000. Secondly, if such
storage or possession has been done to display or distribute it, then the punishment is imprisonment
for a term which may extend to 3 years, or with fine, or both.

However, the storage would be exempted from this offence if it was done for the purpose of
reporting or using it as evidence in court. Lastly, if the said pornographic material is possessed with
an intention to use it for commercial purposes, then the person would be punishable with
imprisonment, the term of which would be between 3 years to 5 years, or fine, or both. And if the
same is committed again, the punishment would be between 5 years to 7 years of imprisonment and
fine.

Under the Indian Penal Code, 1860

The Indian Penal Code does not deal with child pornography directly, however, it prohibits the
display of obscene material to young persons under section 293. In this context, a young person
would be a person who is under 20 years of age. So, a person would be punishable u/s 293 of the
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Code if he/she shares, disperses, exhibits, sells or lets to hire any obscene material (as explained
in section 292 IPC) to any young person. The offender would be punishable with an imprisonment up
to 3 years and a fine of Rs. 2000 on first conviction, however, he would be punishable with an
imprisonment up to 7 years and Rs. 5000 fine in case of second conviction.

Under the Information Technology Act, 2000

Section 67B of the IT Act punishes the act of publishing, transmitting, creating, collecting, browsing,
downloading, advertising, promoting, exchanging, distributing, recording, etc. of any material in
electronic form which shows a sexually explicit activity engaging a child. It also punishes the
formation of online relationships with any child for sexually explicit act and abusing the child online.
The punishment provided u/s 67B is imprisonment of 5 years and ten lakh rupees fine on first
conviction, and in case of second conviction, it is 7 years of imprisonment and fine of Rs. ten lakhs.

Legal Aspects in India

Protection Of Children from Sexual Offences (POCSO) Act, 2012 This Act was enacted to
provide a robust legal framework to protect children from sexual assault, sexual harassment, and
pornography offences while safeguarding the child’s interest at every stage of the court process.
The framing of the Act seeks to place children first by making it easy to use by including
mechanisms for childfriendly reporting, recording evidence, investigating, and prompt criminal
trials through designated special courts. The new Act calls for a number of crimes to punish an
accused. It acknowledges ways of penetration other than penile-vaginal penetration and also
criminalizes acts of childhood immodesty. Penetrative sexual assault: penetration of penis/
object/ another part of the body into the vagina/urethra/anus/mouth of the child or asking the
child to do so with them or any other male. Sexual assault: when someone touches the child or
causes the child to touch them or someone else, sexual harassment: passing sexually colored
remarks, sexual gesture/noise, repeated followup, flashing, etc. Child pornography exacerbated
sexual assault / aggravated sexual assault. Amendment to POCSO Act, 2012 The Parliament of
India passed an amendment to the Protection of Children from Sexual Offences Act, 2012, in
August 2019. The new bill aims to improve the punishment of minors for sexual crimes,
including a death sentence. To counter child pornography, the Bill provides that those who are
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using a child for sexual purposes will be prosecuted with up to five years imprisonment and fine.
However, the punishment would be up to seven years and fine in the event of a second or
subsequent conviction. The Bill defines child pornography as any visual representation of
sexually explicit behavior involving a child, including photographs, video, digital or
computergenerated images that cannot be distinguished from a child. Information Technology
Act, 2000 The information technology Act of 2000 punishes the publishing or transmission of
any obscene material in electronic form. The earlier Act did not have any specialised provisions
regarding child pornography; all the instances of pornography were treated under Section 67 of
the earlier Act. Though, it is important to note that the IT Act, 2000 was an important step
forward from the earlier legislations. Earlier all the instances of pornography whether online or
not were treated under the Indian Penal Code 1860 and the Indecent Representation of Women
(Prohibition) Act 1986. The transmission or publishing of obscene material is punishable by
imprisonment of two years and five which may extend up to five Lakhs rupees and any
subsequent conviction by an imprisonment of five years and fine which may extend up to ten
lakhs rupees. The subsequent amendment to the 2000 Act in 2008 specifically punishes child
pornography. The Act of publishing or transmitting material depicting children in sexually
explicit act is punishable. Moreover, it also punishes browsing, collection, distribution, and
creation of any sexually explicit material containing children. Inducing online relationship with
children, facilitating child abuse online and recording sexual abuse of children in electronic form
is a punishable offence. The Act provides for a punishment with an imprisonment of five years
and a fine up to five lakhs rupees and the second conviction is punishable with an imprisonment
of seven years and a fine up to ten lakhs rupees. The offence made under the Act is non-bailable
and cognizable. Section 67C imposes liability on intermediaries for the retention and production
of information. Section 79was also amended; it specifies the condition sunder which liability will
not be imposed on intermediaries. Even after having such elaborate legal provisions punishing
child pornography, curtailing child pornography is a challenging task. The present technology is
not so developed to churn out child pornography from the wide area of pornography. As the
matter of Pornography has to be seen in consonance of Right to freedom of Expression it a task
to differentiate them on the digital media. Though the legislation has been made under the
different statutes but the basic problem of implementation is a serious issue as in the physical
world the implementation can be possible due to stricter approach by the government but as for
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the digital sphere the government seems to have a little bit of concern and even these institutions
who are accorded with the duty to do so are not even funded properly, so in actually to curb the
problem a serious approach is required.

There a very few judgements at the level of High Court and the Supreme Court dealing with the
matter. Some of them are discussed below :

In the case1 - The matter was in High Court of Hyderabad where a SC/ST girl of 14 years was
raped by few persons and then pictures were taken. She was even threatened that if she comes
out then the perpetrators said that they would make it public so she was hindered from
complaining for some time. Here the matter was referenced to the High Court that the case shall
be tried in POCSO special court or SC/ST Court, here the court made that it shall be tried in the
POCSO Special Court.

In a case2-This was a Criminal Revision petition for against the committal of trail of the case of
the rape of a 13 years old girl. Here the matter was pending in the session court but as the act
provided for the special court to be established in the act so the High Court of Madras ordered
the same to be tried in that court. The matter of Special Prosecutor was also made to which court
agreed with the previous conclusion.

in the case3- the matter was of anticipatory bail in offence related to POCSO act. Here in the
heinous case the father of 2 children was making sexual advancement towards them. Children
being of age 4 and 6 years did not have greater understanding about the same did not mentioned
but the heinous act was found out by her wife and the case was made. That accused got the
anticipatory bail from the court.

1
State of A.P. v. MangaliYadagiri
2
P. Shanmugavel Raj v. State and Ors
3
Hector FirdausKothavala v. State of Maharashtra
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Suggestions & Conclusion

India being one the youngest nations in the world has a large population of Children to account
for. In this regard the laws should be made in consonance and for the betterment of the children
as they serve as the future of this country. There is various form of exploitation that a child of
tender age could meet with but sexual exploitation is the more severe one as it leaves a deep and
mammoth impact on the child for the rest of the life, so laws should be framed in accordance so
that this problem can be tackle out. The problem related to regulation of the same are huge and
some suggestions in this regard are a) Acquire technical knowledge and expertise in Internet
pornography. b) Establish links with other agencies and jurisdictions. c) Establish links with
ISPs. d) To strengthen the central authority and a proper communication channel to be setup. e)
To know the peculiarities of law and the POCSO court working in resonance with the IT Act. f)
Parents , teachers should be friendly with childrens . g) Government also take necessary steps to
prohibit child pornography. The development of computer technology and the internet has a far
reaching impact on the circulation of child pornography. The fight against child pornography on
the internet can only be accomplished by a combination of statutory measures, filtering
technologies and self-regulation. Governments across the globe have pledged to eliminate child
pornography completely. It is important to have an international understanding and consolidated
effort to abolish child pornography. As discussed above, a lot of international and national
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initiatives have been taken place in this century to curtail child pornography. But even now a lot
has to be done to achieve this goal. The present technology needs to be improved to churn out
child pornography from the internet. Moreover, the law enforcement officials, much like
technology must evolve from time to time so as to meet the needs of the society and protect the
interests of the children.

References

 The Indian Penal Code 1860

 The Protection of children from sexual offences Act 2012

 Article by Dr. Samir Bhadury on Journal of Positive School Psychology.

 Article written by Akshita jain on ipleaders (Remedies against child pornography)

 https://blog.ipleaders.in/child-pornography-reasons-impact-and-regulation/
#Impact_Of_Growing_Popularity_Of_Child_Pornography

 https://www.indiacode.nic.in/handle/123456789/2079?locale=en

 https://www.indiacode.nic.in/handle/123456789/2263?locale=en