According to National Crime Records Bureau (NCRB) , child pornography cases in India in 2023 were reported as 35,000 cases, there was a 25% increase over the previous year.
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Child pornography is heinous exploitation and traumatization of children, and this has become a complex legal issue with many repercussions. Though, Indian Law in recent years has seen considerable changes in perception regarding child pornography, due to the enactment of the Protection of Children from Sexual Offenses Act, 2012, and provisions under the Information Technology Act, 2000.
Nevertheless, despite all these legal developments, the challenges in implementing a child pornography law are vast. Rapid progress in technology, the dark nature of the internet, and public unawareness continue to hinder efforts to eradicate such crimes.
THE LEGAL FRAMEWORK : POCSO AND IT ACTS
In India, the law that regulates these crimes is the Protection of Children from Sexual Offences (POCSO) Act, 2012 under child protection law in India.
Child pornography has been defined as “any visual representation of a child engaged in real or simulated sexually explicit conduct.” The creation, distribution, transmission, viewing, and possession of child pornography are all criminalized. The offenders face up to 10 years imprisonment along with hefty fines.
Apart from this, The Information Technology Act, 2000 is augmenting the POCSO Act. The IT Act elaborately deals with the online aspects of child pornography. The Act defines that no person shall create, publish, or transmit any material depicting children in a sexual act. Under Section 67B of the Act, not only the sharing of this kind of content but even the mere browsing or viewing of such material has been declared a punishable offense.
Now coming to the landmark judgment delivered by the Supreme Court on September 23, 2024. The Apex Court declared that even possession or viewing of child pornography without any intent to distribute it is a criminal offense. This verdict clears all such ambiguities regarding the intent behind the possession of these objects and facts.
In fact, the court pointed out that “the POCSO Act leaves no room for leniency, as the crime, even in passive forms like possession, has devastating impacts on children.”
Reading this 200 page verdict, it surely underlines the pressing need for proper sex education in India to fight child exploitation and block the circulation of child pornography.
Writing for the bench, Chief Justice of India (CJI) DY Chandrachud and Justice JB Pardiwala observed,
“Implementing comprehensive sex education programmes that include information about the legal and ethical ramifications of child pornography can help deter potential offenders. These programs should address common misconceptions and provide young people with a clear understanding of consent and the impact of exploitation.”
The judgment has already been hailed as a major breakthrough in India’s legal battle against child pornography.
THE CHALLENGES
But, now the real question comes. Is this legal framework enough? What are the challenges that law enforcement agencies face in tracking down offenders, and how can we balance harsh punishments with rehabilitation for those caught up in these offences?
Despite such strict laws and an advancing stance of the Supreme Court, laws for child pornography are quite challenging to enforce. Out of this, the main challenge is that- most of the internet content, most of which is hosted on encrypted and inaccessible web-platforms as the dark web, is out of reach. It becomes rather difficult for enforcement agencies to track the offenders who can send this content anonymously across borders in a matter of seconds.
According to National Crime Records Bureau (NCRB) , child pornography cases in India have been increasing steadily because many offenders remain undetected due to technical limitations in surveillance and internet monitoring.
A study says, in 2023 there were reports of 35,000 cases, there was a 25% increase over the previous year. But the actual figures do not amount to this as the investigation is highly challenging in the online medium, and many incidents go unnoticed.
Senior Advocate Kapil Sibal also noted,
“While laws like the POCSO Act provide a strong legal framework, the real challenge lies in effective implementation and enforcement. There is a dire need for more resources and training for law enforcement agencies to tackle the rampant issue of child exploitation online.”
So, it is seems true that Indian laws relating to child pornography are comprehensive in nature, but they do seem not to be totally controversy-free.
One of the main contention has been raised on the issue of adequate sentencing of offenders. One section of the society feels that child pornography producers are more in need of rehabilitation and programs for awareness, while the other recommends the most drastic punishments possible to deter future offenses in the first place.
And interestingly, the recent judgment of the Supreme Court touched upon this sensitive balance. The Court, in this ruling, stated that although punitive measures are as drastic as the harsh sentences required, prevention and rehabilitation have now become as important as punishment.
Also in the earlier case of XYZ v. State of Gujarat & Ors. (2020), the Supreme Court tackled issues relating to the POCSO Act and reinforced the importance of reporting and combating child pornography. Justice D.Y. Chandrachud then also remarked;
“The pervasive nature of child exploitation on the internet requires both stringent punitive measures and enhanced public awareness campaigns. The need for judicial oversight in such cases cannot be understated.”
Not just this, Former CJI Dipak Misra, in his observations in In Re: Prajwala Letter Dated 18.2.2015 Videos of Sexual Violence And Recommendations (2015) , emphasized the global responsibility and the need for immediate action against child pornography, stating:
“The safety and protection of children must be a prime concern in the digital world, where illicit content circulates quickly, threatening the dignity and safety of our youth.”
Now coming to the other problem – whether harsher punishments deter crime or simply push offenders deeper into the shadows? Critics say that on one side, lack of rehabilitation mechanism makes things worse with severe penalties.
THE ROLE OF TECHNOLOGY AND CYBER CELLS
We have seen Indian states making progress in the creation of cyber cells that analyze perpetrators who commit child pornography crimes. The cells operate effectively in conjunction with agencies like Police to trace the materials and their creators.
Nevertheless, how crime is performed evolves due to changes in digital technology. Encryption and private networks assist criminal organizations to evade law enforcers from detecting and dismantling them. At the same time, the international cooperation is necessary because the internet is a global domain where “borders do not exist.”
CONCLUSION
It is not the end of the battle, though. While legislation like POCSO and the IT Act gives a very solid body to hold under the basis of the law, the challenge in enforcement is an altogether different story.
In that aspect, the Supreme Court has done a laudable job of laying down the law, particularly on issues as subjective as possession and viewing of such content. And noting that these networks entrench themselves in going through ever new forms of evolvement, so will need India’s response to keep it dynamic.
The call by the Supreme Court for the provision of sex education as a preventive measure is well needed because awareness can curb exploitation before it begins. It is equally important to make public understand these laws related to child pornography and make sure people know there are legal consequences attached to their actions.
Quoting again, the SC bench aptly observed, that the sex education is being viewed as a Western concept that does not align with traditional Indian values. But, it noted; “The court says such common belief has led to resistance from various state governments in implementing sex education programmes in schools,”
Bench further added; “This is what causes teenagers and young adults to turn to the Internet, where they have access to unmonitored and unfiltered information, which is often misleading and can plant the seed for unhealthy sexual behaviours,”
India has made good strides in protecting its children, but still, much road ahead.
The views expressed in this article are personal and based on current available data and insights.
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