Source: The Hindu

Introduction

The recent decision by the Madras High Court in the case of S. Harish v. Inspector of Police (2024) has stirred considerable debate and concern regarding the protection of children from online exploitation. In its ruling, the HC overturned judicial proceedings, asserting that downloading child pornography did not constitute an offence under Section 67B of the Information Technology (IT) Act, 2000. Furthermore, the court relied on a judgment of the Kerala High Court and gave data related to teenagers getting trapped in the web of pornography.

What is the Background of S. Harish v. Inspector of Police (2024)?

• Initiation:
  • The case of the prosecution is that a letter was received from the Additional Deputy Commissioner of Police (Crime against women and children).
  • In that letter, it was mentioned that the petitioner had downloaded in his mobile phone pornographic materials pertaining to children.
• Lodging of FIR:
  • On receipt of the letter, the second respondent had registered a First Information Report (FIR) for offences under Sections 67B of IT Act, 2000 and 14(1) of Protection of Child from Sexual Offences Act, 2012 (POCSO).
• Seizure of Evidence:
  • In the course of investigation, the mobile phone belonging to the petitioner was seized and it was sent to the Forensic Science Department for analysis.
  • A report was given by the analyst specifically identifying two files which contain child pornography content.
  • In those two videos, boys (under teen) were found involved in sexual activity with an adult woman/girl.
• Final Report and Cognizance:
  • In the light of the materials that were seized during the course of the investigation, a final report came to be filed before a Court below the HC.
  • The Court below took cognizance for the offences.
• Challenge Before HC:
  • Aggrieved by the same, the proceedings have been put to challenge before HC to quash the proceedings.

What is Section 67B of the IT Act?

• About:
  • Section 67B(b) of the IT Act explicitly outlines the criminalization of various activities related to child pornography, including downloading material depicting children in obscene or indecent manners.
• Provision:
  • It punishes whoever creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner.
• Punishment:
  • The offender under Section 67B shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.
• Lack of Compliance of Section 67B:
  • Despite forensic evidence confirming the presence of such material on the accused's mobile phone, the HC contended that the accused must have engaged in the publication, transmission, or creation of sexually explicit material involving children to constitute an offence under Section 67B(b).
  • This selective interpretation overlooks the comprehensive nature of the legislation and undermines efforts to combat online child exploitation.

What is Data Related to Porn Addiction of Teenagers in the Judgment?

It was mentioned that a recent study brought out this Porn Statistics in Teenagers:

• 9 out of 10 boys are exposed to some form of pronography before the age of 18.
• 6 out of 10 girls are exposed to pornography before 18 years old.
• On average, a male's first exposure to pornography is at 12 years old.
• Teenage boys, 12-17 years old, have the highest risk of developing a porn addiction.

What was the Case Cited by Madras High Court?

• Reliance Placed:
  • The court relied on a precedent from the Kerala HC in the case of Aneesh v. State of Kerala (2023), which addressed adult pornography rather than child pornography.
• Summary of Kerala High Court Judgment:
  • While watching adult pornography in private may not constitute an offence under Section 292 of the Indian Penal Code, 1860 (IPC) the same cannot be extrapolated to cases of child pornography.
  • The moment the accused person tries to circulate or distribute or publicly exhibit obscene photos or videos, then the ingredient of the offence starts kicking in.

What was the Judgment of Madras High Court?

• Ratio Decidendi:
  • The Madras HC held that the continuation of the proceedings against the petitioner will amount to abuse of process of Court.
  • That apart, it will be a stumbling block for the petitioner's career in future.
    • Therefore, the HC quashed the proceedings against the petitioner.
• Obiter Dicta:
  • The Generation Z Children are grappling with this serious problem and instead of damning and punishing them, society must be mature enough to properly advise and educate them and try to counsel them to get rid of that addiction.
    • Education must start from the school level since exposure to adult material starts at that stage itself.
  • The Court advised the petitioner, who was present in person, to attend counseling, if he is still afflicted with this addiction.
  • The HC said that quashing of the Criminal proceedings by itself will not help the petitioner and the petitioner has to help himself by getting rid of the addiction.

What were the Efforts made Towards Dealing with Child Pornography?

• Amendment in October 2009:
  • Section 67 of the IT Act, along with its amendments, represents a comprehensive framework for addressing online offences, including child pornography.
  • The amendment in October 2009 explicitly criminalized seeking or downloading child pornography, reflecting the evolving nature of digital crimes.
• International Agency:
  • Additionally, coordination with international agencies, such as the American National Center for Missing & Exploited Children, underscores the global effort to combat child sexual abuse materials.

What are Legislative Inconsistencies Related to Child Pornography?

• Failure to Capture Gravity:
  • The terminology used in legislation plays a significant role in shaping public perception and legal interpretation.
  • The term "child pornography" fails to capture the gravity of the offence and implies consent, which is nonexistent in cases involving children.
  • Therefore, advocating for the use of "Child Sexual Abuse Materials (CSAM)" aligns with the severity of the crime and emphasizes the need for preventive measures.
• Inconsistency of IT Act with POCSO:
  • Furthermore, inconsistencies between the POCSO and the IT Act 2000 warrant attention.
  • Amending the POCSO Act to include the possession of CSAM as a distinct offence would harmonize legislative provisions and strengthen child protection efforts.

Conclusion

In conclusion, the recent ruling of the Madras HC underscores the critical need for a comprehensive and consistent legal framework to combat online child exploitation. By aligning legislative provisions, enhancing terminology, and promoting accountability, stakeholders can collectively uphold the rights and safety of children in the digital age. It is imperative that the State government appeal against the judgment to prevent setting a detrimental precedent and reaffirm its commitment to child welfare and justice.