TAG: GS:2- GOVERNMENT POLICIES
THE CONTEXT: Recently, the Madras High Court, in the case of S. Harish vs Inspector of Police (2020) ruled that downloading child pornography does not constitute an offence under Section 67B of the Information Technology (IT) Act, 2000.
EXPLANATION:
What is the POCSO Act?
The POCSO Act originated from India’s commitment to the UN Convention on the Rights of the Child in 1992. This special law aims to address sexual exploitation and abuse of children by defining and penalizing these offenses.
- The Act encompasses individuals below 18 years, providing punishments based on the gravity of the offense. In 2019, amendments were introduced, incorporating more stringent penalties, including the death penalty.
- The POCSO Rules, 2020, and Rule-9 allowing interim compensation, were also notified.
- The Act ensures gender-neutral protection and facilitates ease in reporting cases.
Features:
- Gender-Neutral Nature:
- Acknowledges that both genders can be victims of sexual abuse.
- Upholds the principle of equal protection for all children.
Ease in Reporting Cases:
- Promotes reporting of sexual exploitation cases by individuals or institutions.
- Non-reporting is specifically penalized, making it challenging to conceal offenses.
- Introduces a new offense for storing child pornography material.
- Defines ‘sexual assault’ explicitly, providing a clear legal framework.
Immediate Payment of Special Relief:
- Empowers the Child Welfare Committee (CWC) to recommend immediate payment for essential needs.
- Utilizes funds from District Legal Services Authority, District Child Protection Unit, or funds under the Juvenile Justice Act.
What are the Issues in the Recent Judgement of Madras High Court?
- Different Interpretation of Section 67B:
- Madras HC’s interpretation of Section 67B(b) raises concerns about the accused’s actions.
- Failure to analyze the entire Section 67B impacts the clarity of the judgement.
Incomplete Reference to Kerala HC’s Judgement
- Madras HC cites a precedent from Kerala HC without providing specific details.
- Reference to a case on the scope of Section 292 of IPC in the context of child pornography lacks relevance.
Negligence of Constitutional Validity of Section 67B
- Lack of consideration for the constitutionality of Section 67B(b).
- Failure to challenge the vires of Section 67B(b) weakens the judgement.
- Madras HC invokes Section 482 to prevent misuse of the court process.
- Overreliance on this section, without ensuring the allegations constitute an offense, raises concerns.
What Steps Need to Be Taken to Address the Issues:
Adhering to Comprehensive Legislative Framework
- Emphasizes the adequacy of Section 67B of the IT Act in addressing offenses related to child pornography.
- Recognizes the comprehensive legislative structure in combating sexual exploitation in cyberspace.
National Crime Records Bureau’s Role
- Highlights the role of NCRB in prosecuting those uploading child sexual abuse materials.
- Stresses the need to safeguard privacy concerns of child victims.
Terminology Adjustment
- Advocates for replacing “child pornography” with “child sexual abuse materials” (CSAM).
- Suggests that this linguistic shift will enhance legal clarity.
Harmonising Legal Provisions
- Calls for aligning provisions between POCSO Act, 2012, and IT Act, 2000.
- Aims for consistency in addressing offenses related to child sexual exploitation.
Making CSAM a Separate Offence
- Proposes amendments to include possession of CSAM as a distinct offense under the POCSO Act.
- Aligns the Act with the provisions of the IT Act.
Importance of State Action
- Emphasizes the critical role of state governments in appealing against the Madras HC’s decision.
- Stresses the necessity of upholding laws related to child protection for justice.
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