Author: Somala Viplava, Sri Padmavathi Mahila Vishwavidyalayam
To the point
In India children are said as assets of the country.The government gives most importance to children and made many social,economical,and legal framework to protect the rights of the children and our constitution also gives power to the parliament to made any special provisions for children under article 15(3) of the Indian constitution. Exploitation of children for sexual abuse or for employment is a criminal offence under Indian laws.This case is dealt with the child pornography and the punishment for exploiting children under POCSO Act and Information Technology Act,2000.
Use of Legal jargon
Constitutional provisions
Article 14 : Right to Equality
It gives equal rights for all which also includes children.
Article 15(3) : prevents discrimination on women and children
It gives power to government to make special provisions regarding women and children.
Article 21: Right to life and personal liberty
It gives protection to life which also include gets protection from sexual abuse.
Article 21 A : It gives protection for the children against child labour and exploitation of the children.
Article 39(e) : It protects children from exploitation.
Legal Provisions and conventions
POCSO Act,2012 : which protects children from sexual offences like sexual assault,sexual harassmen, and child pornography.
IPC,1860 : Sections 375 and 376 of this Act are dealt with rape and punishment for rape which also includes child rape. And section 377 of this Act with unnatural offences means the offences that are not natural.
Juvenile Justice Act,2015 ( Care and Protection of Children) : which protects children from child abuse and sexual abuse.
United Nations Convention on the Rights of the Child (CRC) : The India signed on this convention in 1992,it gives protection to children from all forms of exploitation and abuse.
Optional Protocol to the CRC on the sale of children, child prostitution, and child pornography : India signed this convention in 2005,which prevent sale of children,prostitution on child and child pornography.
Government Initiatives
National Child Protection Policy : It gives children free from exploitation and abuse and also creates safe and secure environment for children.
Childline 1098 : It is a 24/7 helpline number which helps at any time for children who are in distress, and which gives emergency assistance and support to children.
POCSO e-Box : It is a online platform to report any child abuse or child sexual abuse and exploitation of children.
National Convention for Protection of Child Rights (NCPCR) : It is a statutory body which gives rights to the child.
The Proof
The burden of proof is depends on the accused to prove that he is innocent.Generally, the elements of crime is of two types they are:
Mens Rea which means guilty mind or an intention to do act ; and the Actus Reus means to do an act. The intention of accused to do an offence is causes an accused to do an offence.
The accused has the liability to prove his intention and his innocence in the court.
Abstract
Legal Background of the Case
The case Just Rights for Children Alliance Vs S.Harish is significant case of “Child Pornography”. This case was filed by the Tamilnadu All Women’s Police station on 29th January 2020 against the accused S.Harish.
Based on the Cyber Tipline Report of National Crime Record Bureau the accused was charged under the the section 14(1),section 15(1) and section 30 of POCSO Act and the section 67B, section 79 of Information Technology,2000.
This case was quashed by the Madras High court and gives judgement in favour of accused and further it was appealed to the supreme court on 19 September 2023.
What is this case?
An accused S.Harish was arrested under section 14(1),section 15(1) of POCSO Act,2012 and section 67B of the Information Technology Act,2000 by the Tamilnadu All Women’s Police station on 29th January 2020 for the offence of child pornography.
According to Cyber Tipline Report it was given by the National Crime Record Bureau on 22nd August 2020, the accused watched two child pornography videos which have two male children involved in sexual intercourse with two adult women, these videos was watched and downloaded by the accused in his mobile phone.
And also many porn videos was watched and downloaded by the accused in his mobile phone.The videos downloaded by the accused having the members who were sexually exploited and missed.
Madras High Court gives judgement in favour of accused and further it was appealed to the supreme court.
In the supreme court the accused said that he didn’t have the knowledge that watching and downloading videos was committed to an offence.But the ignorance of law is not excusable before the court.
The accused was punished by the supreme court under section 14(1), section 15(1) of POCSO Act,2012 and section 67B of Information Technology Act,2000 on 23rd September 2024.The court stated that exploitation of child not only includes sexual abuse it also includes watching child pornography,downloading child pornographic videos and mere possession or creation of that videos or also known as exploitation of children for sexual abuse.
The court also said that watching child pornography and downloading the videos and not deleting that videos in the phone or reporting the video is considered as the intention of the accused before his act.
Case Laws
The Protection of Children from Sexual Offences (POCSO) Act, 2012, was made after various cases are needed to protect child from sexual abuse and exploitation in India.
– Bachpan Bachao Andolan vs. Union of India (2010)
In this case there is need for a significant law to protect children from sexual offenses.
The petitioner, Bachpan Bachao Andolan, gain support from the Supreme Court to frame a national policy to prevent child sexual abuse.
– Sakshi vs. Union of India (2004)
In this case the committee was formed to draft a comprehensive law on child sexual abuse.
This committee report formed the basis of the POCSO Act.
-Vishaka vs. State of Rajasthan (1997)
Even though this case is not directly related to child sexual abuse, it laid down guidelines for preventing sexual harassment of women at the workplace.
By this judgment emphasized the need for a safe and secure environment for children and women.
– Laxmi Kant Pandey vs. Union of India (2013)
In this case the court ordered the government to take steps to prevent child trafficking and exploitation.
Cases outside Inside
1. United States v. Dost (1986) : A US federal court established the “Dost test” for determining whether a visual depiction of a minor constitutes child pornography or not.
2. Regina v. Sharpe (2001) : A Canadian Supreme Court case which upheld the constitutionality of laws prohibiting child pornography.
3. R v. Oliver (2003) : A UK Court of Appeal case which made the principle that possession of child pornography is a criminal offense.
Famous Cases of India
1. MC Mehta vs. State of Tamil Nadu (1996): It was given by the Supreme Court that children have the right to be protected from exploitation and sexual abuse.
2. Vishal Jeet vs. Union of India (1990) : The court ordered the government to take steps towars prevention child labor and exploitation of children.
Conclusion
Exploitation of children for sexual abuse is considered as a criminal offence under Indian laws.In this case the word “Child Pornography” under POCSO Act,2012 and Information Technology Act,2000 was interpreted to “Child Sexual Exploitation and Abuse Material” by the Justice Pardiwala.The child pornography not only includes exploitation,the possession of child pornographic videos or watching or downloading that videos with the mere intention to share or transmit that videos.
After watching the videos the person did not trying to delete,destruct or report that videos is consided as the intention of the person to involve in that act and he was punished with both imprisonment and fine for his act.
FAQS
1. Is accused punished under section 14(1) and section 15(1) of POCSO Act?
Ans : Yes, the accused was punished under the sections 14(1) and 15(1) of POCSO Act,2012.
2. Who is called as children under this Act?
Ans : The person both male/female who is below the age of 18 years is known as children under this Act.
3. What interpretation was made to this Act by this significant case?
Ans : The word ” Child Pornography” was changed to ” Child Sexual Exploitation and Abuse Material (CSEAM) by Justice Pardiwala.
