Image used for representational purposes only.Express illustrations
For at least the second time this year, the judiciary’s understanding of the POCSO Act and its provisions on child sexual abuse material (CSAM, more widely referred to as child pornography) has come under the scanner.
In January, the Madras High Court, in a decision now under review by the Supreme Court, quashed the FIR and criminal proceedings against a 28-year-old man and held that downloading and possessing CSAM was not an offence under the law (in this case, under the IT Act and POCSO).
The Supreme Court rightly slammed the judgement, as the high court’s verdict was an incorrect reading of the two laws.
Now, the Delhi High Court has undertaken a suo motu revision petition after a PIL by an NGO brought to light that a sessions court had discharged two accused of offences under POCSO Act in a case in which CSAM was recovered from their electronic devices. The lower court’s reasoning was that as the children in the images could not be identified or traced, it was not possible to ascertain that they were indeed minors, and therefore POCSO could not be invoked. The Delhi HC termed this a miscarriage of justice and pointed out there was no need to prove the persons are children when the definition of child pornography under POCSO covers any sexually explicit conduct involving a child or appearing to depict a child. Further, the investigation agency, the CBI, in its chargesheet had included the opinion of two doctors who examined the material and said the persons in the content are children. The lower court, however, disregarded the statements.
The case simultaneously illustrates the relatively far-sighted approach of a law that is over a decade old and the still-patchy understanding of the Act, and possibly the crime itself. CSAM is a particularly heinous crime in that it perpetuates the sexual violence against a child. Leaving aside the correlation between consumption of CSAM and contact abuse, the perpetuation of the abuse through its circulation and viewing retraumatises the child. When countries in the West have dedicated resources to the destruction of such material and identification of its victims, the seeming superficiality with which the Indian legal system engages with this particular crime is just another reminder of how much farther we have to go towards ensuring true justice to child survivors of CSAM.
