ABSTRACT
Child pornography denotes unlawfully sexual and other erotic activities on the internet which are concerning to children. It comes under the purview of child pornography while the content involves an actual minor through digital media or computer-generated photographs and videos. Those images and videos contain the documentation of an original crime scene in nature that would be disclosed of individual consumption. As live-streaming sexual activities have commenced surfacing where people are spending their money to watch the live sexual intercourse of a child through video streaming services and this digital generated crime are complicated to scrutinize because of their real-time nature and the lack of digital proof behind the scenes of that crime. In India, there are various statutory provisions for preventing and recognising child pornography as a punishable offence like sections 67A and 67B of the Information Technology Act, 2000.
KEYWORDS
Child, Sexual Abuse, Rape, Offence, Cyberspace.
INTRODUCTION
“All human beings are born free and equal in dignity and rights.”[1]
In this contemporary era, due to misuse of technology, the ratio of cyber pornography is increasing day by day and continuously violating women’s privacy which reveals a major concern with the special mention of the girl child. In India, the available legal provisions protect against these ruthless activities and prevent such activity however, their effectiveness and adequateness are in question. At present, there are the merely two statutes like the Protection of Children against Sexual Offences Act, 2012 (POCSO) and the Information Technology Act, 2000 (IT Act) which covers child pornography and women as well as other relevant provisions of criminal law. Despite the existence of such statutes, there is a grave threat to occur the cyber pornography yet and continuously it is being expanded and millions of minor largely girl children are declining to the victim of cyber pornography. In 2021, an FIR has been registered by Delhi Police’s Cyber Cell against Twitter for allegedly having sexual abuse and child pornography content on their platform following a complaint by the National Commission for Protection of Child Rights (NCPCR).[2] As they said, the FIR has been filed under appropriate provisions of the Indian Penal Code, Protection of Children from Sexual Offences Act and Information Technology Act, 2000.[3]
During this COVID 19, there is not only an increase in bodily ailments diseases but also an upswing in the child pornography business in India. According to data from the National Crime Records Bureau, 738 child pornography cases were registered in 2020.[4] This was also said in parliament by Smriti Zubin Irani who is a Minister of Women and Child Development of India.[5] At now, this data also demonstrates a harsh growth in the digit of child pornography issues from 2019, where merely 103 issues were recorded. In 2018 the digits were merely 44.[6] This indicates that 2020 saw a vertical increase in the digit of 619 per cent in child pornography issues as described in 2019. However, merely 272 issues were charge-sheeted in 2020 and nobody was convicted. According to the data, in 2019, just 4 people were convicted and only one person was convicted in 2018 for child pornography.[7]
RESEARCH METHODOLOGY
This research paper is Doctrinal in nature. The author of this paper tries to evaluate the aspects of legal statutes and their provisions in this concern. It has been made to utilise the primary and secondary references of data. The main object of this research is to distinguish between cyber pornography and what is the remedy to deal with the issue.
REVIEW OF LITERATURE
In this civilized era, child pornography is widespread due to the fastest-growing Internet access movements. Contrary to makers, owners of pornography do not have openly alliance the manual and sexual misusage of children. However, owners and operators of this sexual abuse and rape can be also accountable for the continuous victimization of innocent children. In this contemporary era, how pornography ought to be controlled is one of the connections of most debatable issues on the Internet. The prevalent availability of pornography on the Internet has bothered a strict apprehension shared by the government. Because there have been numerous tries to restrict the availability of pornographic topics on the Internet by governments and legislative bodies across the globe. Sociological ideas of unnatural conduct have not been systematically involved in the difficulty of who operates and who does not operate cyber pornography on the Internet. Making laws are not similar to implementing them. Whereas, adequate anti-child pornography statutes prevail in numerous countries so that implementation is vulnerable. Even though those barriers arise insurmountably, it should be known that child pornography is a substantial and binding difficulty on worldwide, nationwide, and regional levels and it is not an innocuous offence. A larger number of juvenile molesters are directly operating computer technology to find, regulate, and expand the quantity of their child pornography varieties. Besides, privately generated unlawful pictures of children are most profitable on the Internet, and constantly molesters would sell pictures of their sexual abuse when those pictures come on cyberspace then they are irreversible and may start again to distribute perpetually, therefore, the child is victimised as the pictures are looked too.
The purpose of the Internet is to establish a thrilling current global of communication and information for everyone with access via online technology. However, this technology gives unparalleled resources for adults and children to know about this world we live in. But when we do misuse, it would go towards an immense effect on sexual exploitation, especially the distribution of sexually abused pictures of children and the sudden expansion of the technology and online accessibility that has occurred in the availability and growth of child pornography in India. Due to these technological developments, the Government of India has passed numerous reforms to maintain the legal frameworks. In 2015, India had banned around 857 adult content websites due to concerns about child pornography.[8] This critical decision was carried out by the Information Technology Act, 2000 and Article 19(2) of the Indian Constitution which permits the state to compel regulations on the grounds of morality and decency. Regardless, this entire ban was later lifted and merely enforced on those websites where existing child porn and India has strived that method and criminalization of an extensive prohibition on pornography websites. It is also crucial that worldwide responsibilities concern child pornography separated from adults and trading with child pornography are made more strict.
CHILDREN’S RIGHTS UNDER INTERNATIONAL CONVENTIONS
A global method ought to be involved for this multi‐jurisdictional difficulty to deal with. Across the world, there is required uniform legislation to successfully confront child exploitation and child pornography that vary from one nation to another nation serve to diminish the position against child sexual abuses and enable innovative ideas and strengthen actions in nations where they can be able to exercise against such sexual exploitation of children. A uniform and holistic directions are the most beneficial means of fighting against the sexual abuse of minors because it entitles them to consistent criminalization and punishment. This would increase social awareness, duties are accessible to attend to sufferers, enhance prevailing statutes to implement reasonable measures of the trouble at the national and international levels, acknowledging with international legitimate ideals that would be a preliminary phase in dealing with child pornography, to be obeyed by national enactment statute and the composition of a national legislative policy to confront with the child exploitation.
Adult and children both have equal human liberties as adults and also particular freedoms that acknowledge their specific requirements. Children are neither the commodity of their parents nor are they worthless purposes of charity. They are also human beings and are the subject of life with human dignity.[9] The Convention on the Rights of the Child provides the liberties that would be known for minors to expand to their full capacity as well as it gives an insight of the minor as a person and as a fellow member of a community and family, with freedoms and duties applicable to his or her age and phase of improvement by acknowledging children’s rights in this manner and this Convention positively establishes the priority on the entire child of the world. This Convention also acknowledges the essential right that is human dignity of all minors and the requirement of assuring their advancement and well-being. It creates exactly the ideology that the essential integrity of life would be the right of all children, instead of freedom admired by a rare.
On the other side, India is acknowledged and signatory to various international conventions and statutes about the rights of children to their safety, security, dignity and progress. It was granted to the United Nations Convention on the Rights of the Child (UNCRC) in 1992, reaffirming its first endorsement in the 1959 United Nations Declaration on the Rights of the Child and is entirely engaged in the enactment of all declarations of the UNCRC. In 2005, the Government of India approved the two Discretionary Conventions of the UNCRC, dealing with the children in armed dispute and child prostitution, sale of children and child pornography. However, India is enhancing its nationwide schemes and efforts to safeguard children from these heinous aspects of exploitation and violence. India is also a signatory to the International Conventions on Economic, Cultural and Social Rights, Civil and Political Rights implemented under the human rights of children as well as youth.
CHILDREN’S RIGHTS UNDER INDIAN LAWS
In India, sexual abuse along with children has been increased over the last few years and India exists on prime of the list with 11.7% of the entire reports by a global compilation of reports of child sexual abuse material (CSAM) found on the Internet.[10] It is not a recent happening that has existed in the nation for a quite long time. Therefore, the stabs to examine this incident have been tiniest, overseeing growth in child sexual exploitation. Thereafter, many times claims by numerous stakeholders to impose a statute to safeguard children. In the year of 2006, the Government of India was organizing a draft Bill and after that, passed the Protection of Children from Sexual Offences Act, 2012. This specific statute guarantees the security of children from sexual abuse and ultimately permits rigorous penalties for such activities.
Thus, India has several legal provisions to promote and safeguard the children of the nation. Hence, Article 21[11] The Indian Constitution gives for the right to life and liberty which means every individual has the right to live with human dignity. On the other hand, Article 24[12] of the Indian Constitution would not permit them to work in a factory, mine or engage in a dangerous occupation for children below 14 years. Moreover, Article 39(f)[13] of the Indian Constitution provides that it is necessary for the State to organize its scheme towards ensuring the fitness and stability of children and to provide them chances and abilities to protect their bodies. Article 45[14] of the Indian Constitution empowers that the State would endeavour to confer initial childhood maintenance and education to children below the age of 6 years. Besides, there are many specific statutes for an offence against children like the Child Marriage Restraint Act, the Immoral Traffic (Prevention) Act, 1986, the Juvenile Justice (Care and Protection of Children) Act, 2000 and the Child Labour (Prohibition and Regulation) Act, 1986.
The Criminal Procedure Code, 1973 and The Indian Penal Code, 1860 are regulating the procedural and substantive portions of criminal offences comprising those which involves children. Since the beginning, there have been no particular statutes regulating the abuse of children that’s why the specific statutes have been involving the children and adults of the nation. The statutes legislating for sexual crimes involved Sections 375, 377 and 354 of the Indian Penal Code, 1860. Thus, there are existing crimes for protecting the child girls such as Sections 366-A, Section 372 and Section 373 of the Indian Penal Code, 1860. Regardless, these laws are not sufficient or comprehensive to deal with such grievous crimes upon innocent children. Because these sections are merely subjective towards the girl and these are not sufficient for themselves whether procedurally or substantially to address the particular requirements of sexual exploitation among the minor girl.
Despite these popular statutes, merely the State of Goa was legislated the Goa Children’s Act, 2003 to promote, protect and conserve the concerns of minors in the state and to build a state that would be child-friendly. This statute allocates the crimes into a serious sexual assault which confers various kinds of intercourse such as oral, anal, vaginal, use of matters, compelling children to have sexual intercourse with each other, intentionally committing damage to the sexual arms and bringing the minor girl to pose for pornographic pictures or videos. However, a sexual attack which denotes sexual touching with the use of any physical organs or motive, exhibitionism, voyeurism, showing pornography images of movies to children, forcing children to watch others committed in sexual acts, putting out warnings to sexually exploiting children, verbally harming a child for manipulating vulgarity. However, this is the mere statute of India which is confined in the state of Goa where exists special statutes for dealing with children to sexual exploitation.
PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT, 2012
This statute was legislated with the purpose to safeguard the minors from crimes of sexual exploitation, sexual assault and to confer for the incorporation of a special tribunal for the prosecution of such crimes and objects related in this regard. This statute also confers its authority to Article 15(3)[15] of the Indian Constitution which provides that the State has the power to make special provisions in favour of women and children as well as Article 39(f)[16] of the Indian Constitution gives that the State can make a rule to ensure and protect the tender age of minor because they cannot be exploited as well as their adolescence and youth are preserved from any kind of abuse. Besides, the State would endeavour to fulfil its acknowledgement of the United Nations Convention on the Rights of the Child (UNCRC) which was approved by the State in 1992.[17] This Convention was the most widely endorsed by the treaty of human rights in the past. This has also inspired nations to amend statutes and rules and create interests due to more children getting the nutrition and fitness maintenance that are necessary to develop and survive. Moreover, there are powerful precautions in the niche to safeguard children from exploitation and violence. Besides, it has aimed to guarantee the favourable advancement of the children and safeguard their solitude and privacy from the judicial system and assure the biological, sentimental, academic and social progress of the child.[18]
SUGGESTIONS
Hope all the readers must have brought a proper knowledge about the child pornography. Why is it increasing day by day and how would it be impacted in our society? Besides, a favourable numbering of the statutes that deal with this grave threat in India has been executed. However, an important issue arises: is this sufficient? Are these all that would be accomplished? And if this is all that can be achieved, why is not this danger ending?
According to the author of the paper, the reformation would be made into the mentalities of those criminals because the law would merely punish the criminal and that also necessarily with a decisive implementation of the methods which does not exist in India yet. Statutes to their absolute capacity may only restrict any crimes but this threat to end we have to take steps against the issue to uproot from its very beginning. Because this can only arise by familial and societal consequences. This sounds maybe unclear however, the absolute remedy to this issue as per the author fabricates in a methodical uprooting of this issue, which would be commencing from the home itself by providing capacity to their children and giving them with a proper atmosphere where they would be able to share everything and anything with their families or parents. Besides, regular examinations must be pursued by the parents to their kids and the person with those who are confidentially interacting with them. This would be performed without any infringement of their secrecy with the modest purpose of handling the difficulties that they may be undergoing. Besides, most greatly a constructive parenthood behaviour would be obtained to develop the kids as a prosperous person.
CONCLUSION The legal and procedural obstacles to safeguarding the concerns of children on the Internet is complicated. Different cultural and social measures compel it problematic to establish a productive international framework for the preservation of children on the Internet. However, most of the issues are perplexed by the numerous directions obtained on the Internet, extradition and the procedure of criminal jurisdiction over the method of evidence-based activities. The lack of a consistent and balanced framework on privacy, measurement control and pornography serves as the main barrier to enforcing a significant international policy to safeguard the concerns of children on the Internet. However, the argument tries to exhibit that the obstacles are not overwhelming. What is significant at the end of the day is that there must be an agreement from all nations to safeguard children so that a constructive legal policy can be imposed in the territories. Much can be achieved by trying to have judicial expertise, timely legal intervention to address the flaws by the legislative and a just degree of integrated global alliance in the field, with a wide range of lessons known from existing criminal law provisions
[1] Universal Declaration of Human Rights, Article 1.
[2] The Hindu, https://www.thehindu.com/news/cities/Delhi/case-against-twitter-for-giving-access-to-child-porn/article35045243.ece (last visited 07.03.2022).
[3] Ibid.
[4] Edexlive.com, https://www.edexlive.com/news/2021/dec/15/child-pornography-cases-reported-in-india-increase-by-more-than-600-per-cent-in-2020-26251.html (last visited 07.03.2022).
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] The Hindu, https://www.thehindu.com/news/national/Ban-on-857-porn-sites-temporary-says-Centre/article60313996.ece (last visited 09.03.2022).
[9] UNICEF, https://www.unicef.org/child-rights-convention/child-rights-why-they-matter (last visited 12.03.2022).
[10] The Hindu, https://www.thehindu.com/news/national/most-online-content-on-child-sexual-abuse-from-india/article31377784.ece (last visited 11.03.2022).
[11] Constitution of India, 1950, art. 21.
[12] Constitution of India, 1950, art. 24.
[13] Constitution of India, 1950, art. 39(f).
[14] Constitution of India, 1950, art. 45.
[15] Constitution of India, 1950, art. 15(3).
[16] Supra Note 11.
[17] The Hindu, https://www.thehindu.com/news/cities/chennai/Laws-on-child-rights-remain-on-paper/article16796980.ece (last visited 11.03.2022).
[18] UNICEF, https://www.unicef.org/child-rights-convention#learn (last visited 11.03.2022).
Dear Editor,
This blog was written by me (Subhajit Samanta, B.A.LL.B, 5th-Year, Bikash Bharati Law College) kindly add my details on this blog.
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