The Union Cabinet has approved a new definition for ‘child pornography’ in its amendments to the POCSO Act.
THE NEW ACT:
Protection of Children from Sexual Offences Act (POCSO Act), 2012 was formulated in order to effectively address sexual abuse and sexual exploitation of children. The Act was formed to provide a child-friendly system for trial underneath which the perpetrators could be punished. It also provides for mandatory reporting of sexual offences.
- Neither Section 67 of the Information Technology Act (IT Act) nor Section 293 of the Indian Penal Code (IPC) defines child pornography.
- Its definition derived from what constitutes pornography, which is defined as any material which is lascivious or appeals to the prurient interests or if its effect is such as to tend to deprave or corrupt the minds of those who are likely to see, read and hear the same.
- In the proposed changes in the Protection of Children from Sexual Offences (POCSO) Act, the Women and Child Development Ministry have defined child pornography and enhanced punishment for its possession and distribution.
- The new definition reads, “Any visual depiction of sexually explicit conduct involving a child which include photographs, video, digital or computer-generated image indistinguishable from an actual child and an image created, adapted or modified but appear to depict a child.”
- Watching, possessing or circulating animations or cartoons that depict a minor engaging in sexually explicit conduct could land you in jail. The amended law will also apply to pornographic content where ‘adults or young adults’ pretend to be children.
- Additionally, “an image created, adapted, modified” to depict a child would also be treated as child pornography. This would also include cartoons, animated pictures, etc.
- The Cabinet has also enhanced the fine for possessing child porn but not deleting or reporting it to Rs 5,000 from the earlier proposal of Rs 1,000.
- If a person stores such content for distributing it further, except for when presenting it in court as evidence, he could face a punishment of up to three years.
The amendments in Section-2, 4, 5, 6, 9, 14, 15, 34, 42 and 45 of the POCSO Act, 2012 are being made to address the aspects of child sexual abuse in an appropriate manner.
- Stringent Punishment: Sections 4, 5 and 6 are proposed to be amended to provide the option of stringent punishment, including the death penalty, for committing sexual assault and aggravated penetrative sexual assault crime on a child to protect the children from sexual abuse.
- Protection in times of Natural Calamities & others: The amendments are also proposed in Section-9 to protect children from sexual offenses in times of natural calamities and other similar situations and in cases where children are administered, in any way, any hormone or any chemical substance, to attain early sexual maturity for the purpose of penetrative sexual assault.
- Addressing the menace of Child Pornography: Section-14 and Section-15 of the POCSO Act, 2012 are also proposed to be amended to address the menace of child pornography. It is proposed to levy fine for not destroying or deleting or reporting the pornographic material involving a child with an intention to share or transmit it.
CHILD ABUSE IN INDIA: TRENDS & CRIME STATISTICS:
- According to WHO, a 2011 study estimates that 18 percent of girls and 8 percent of boys worldwide have experienced sexual abuse.
- National Crimes Record Bureau (NCRB) statistics state that a total of 48,338 child rape cases were recorded from 2001 to 2011. These figures are under-reported as the majority of child rape cases are not reported to the police.
- India saw an increase of 336 percent of child rape cases from 2,113 cases in 2001 to 7,112 cases in 2011.
- It is known that about nine of 10 rapes and sexual assaults are carried out by people known to the victim.
- As per the census of 2011, there are 444 million children in India under the age of 18 years and out of every two children in India abused one way another.
- The National Crime Records Bureau (NCRB) has started collating data on online child sexual abuse in the country. Till now no repository of such crimes was available at the national level. The instance of cyber-crime against children can be observed by looking following data released:
- A survey conducted by Microsoft Corporation in 2012, across 25 countries ranked India third in the number of online bullying cases reported.
- According to the 2014 study conducted by the Internet security company, McAfee, “Half of the youth in India have had some experience with cyberbullying.”
- The 2016 Norton Cyber-security Insights Report states that 51 percent of parents around the world see online bullying as more likely than being bullied at school or work (49%).
PROVISIONS TO SAFEGUARD CHILDREN IN INDIA:
- Indian Constitution recognizes children as equal right holder and grants the highest priority for their protection and well-being.
- India is also signatory to the United Nations Convention on the Rights of the Child (UNCRC) and accordingly has a strong legal framework to protect children which include the following:
- Juvenile Justice (Care and Protection of Children) Act 2015: The JJ Act, 2015 provides for strengthened provisions for both children in need of care and protection and children in conflict with the law.
- Pre-Conception and Pre-Natal Diagnostic Techniques (PCPNDT) Act 1994: The PC-PNDT Act was enacted with the intent to prohibit prenatal diagnostic techniques for the determination of the sex of the fetus leading to female feticide.
- The Commission for Protection of Child Rights Act 2005: It is an Act to provide for the constitution of a National Commission and State Commissions for Protection of Child Rights and Children’s Courts for providing a speedy trial of offences against children or of violation of child rights and other related matters.
- The Right of Children to Free and Compulsory Education Act, 2009: The Act prohibits the detention of children till they complete elementary education i.e., class 8.
- Prohibition of Child Marriage Act, 2006: The Act prohibits solemnization of child marriage.
- Child Labour (Prohibition and Regulation) Amendment Act, 2016: The amended Act has widened the scope against child labour and provides for stricter punishments for violations. The 1986 act prohibits employment of children below 14 years in three occupations: Mining, Inflammable substances, and Hazardous processes.
BENEFITS OF THE MOVE:
- Handling the Legal Battle with Ease: A legal definition was necessary as it leads to setting the context of the crime. Only punishment leads to the possibility that the case may get entangled in inconclusive legal battles.
- Enforcing Responsibility: The definition also underlines and enforces citizens’ responsibility to report and destroy (the matter) as not reporting is evidence of a crime.
- No Escape: Now, India has come up with a well-rounded, robust definition. Earlier, accused could claim that it is not actually a child in the video, but an adult pretending to be a child, and try and evade the law. But now, even that is illegal.
- Covering Cybercrimes: The new definition includes digitally morphed images used for sexually explicit content as well as images of adults pretending to be children performing sexual acts. It can now help deal with cyberbullying cases that often involve online harassment through morphed and animated images.
A definition can be a strong instigator of social change and fortunately, we have achieved it. The modification in the law will bring this change while addressing the need for stringent measures against the rising trend of child sex abuse in the country and combat the menace of relatively new kind of crimes. The strong penal provisions will act as a deterrent. It will protect the interests of vulnerable children in times of distress and ensures their safety and dignity. It will establish clarity regarding the aspects of child abuse and punishment thereof ensuring a safe environment for children in the country.