Sexual exploitation of children is a pervasive and deeply rooted issue that has plagued societies worldwide and has been a matter of “serious concern” in India, the Supreme Court said on Monday.
The apex court, while referring to the legislative history and scheme of the Protection of Children from Sexual Offences (POCSO) Act, 2012, said prior to the enactment of this law, the country lacked a specific legal framework dedicated to dealing with sexual offenses against minors.
A bench comprising Chief Justice D Y Chandrachud and Justice J B Pardiwala said the increasing incidence of child sexual abuse in India and the growing awareness of the long-term psychological impact on the victims underscored the need for a dedicated law.
It said the POCSO Act was introduced to fill this gap and provide a robust legal mechanism to safeguard children from sexual crimes and protect them from offences of sexual assault, sexual harassment and pornography.
“Sexual exploitation of children is a pervasive and deeply rooted issue that has plagued the societies worldwide and has been a matter of serious concern in India,” the bench said.
The apex court delivered a landmark judgement which held that mere possession of any child pornographic material will constitute offences under the POCSO and the IT laws even if they are not disseminated further.
Justice Pardiwala, who penned a 200-page verdict for the bench, said the erstwhile Indian Penal Code (IPC), though equipped to handle sexual offences, did not explicitly recognise the various forms of sexual abuse that children might face.
The bench noted the primary legislative intent behind the enactment of the POCSO Act was to create a comprehensive legal framework that would not only punish offenders but also provide a child-friendly system for the recording of evidence, investigation and trial of offenses.
It said the POCSO Act was designed to cover all forms of sexual abuse against children, including sexual harassment, child pornography and aggravated sexual assault, among others.
“It aimed to ensure the safety and dignity of child victims during the legal process, with specific provisions that mandate in-camera trials, the presence of a trusted adult during the proceedings, and the prohibition of aggressive questioning of child victims,” the bench said.
It said the United Nations Convention on Rights of Children, which was ratified by India, prescribed a set of standards that have to be ensured by all State parties to secure the best interest of the child and to specifically undertake preventive measures against any form of exploitation of children such as prostitution, unlawful sexual activity or pornographic performances and depictions.
“The POCSO is a legislative manifestation towards realization of these constitutional provisions, by providing a specialized framework to combat and prevent any and all forms of sexual abuse and exploitation as stated in its long Preamble,” the bench said.
The top court referred to the provisions of the Information Technology (IT) Act that penalise the use, transmission and publication of obscene materials including child pornography.
It also referred to divergent views expressed by different high courts of the country as regards the ingredients necessary to constitute an offence under section 15 of the POCSO Act and section 67B of the IT Act.
While section 15 of the POCSO Act deals with punishment for storage of pornographic material involving child, section 67B of the IT Act pertains to punishment for publishing or transmitting of material depicting children in sexually explicit act, etc in electronic form.
The section 15 of the POCSO Act provides different punishments of varying jail terms or fine or both. Under section 15 (1), which deals with possession of child pornographic material, provides for a minimum fine of Rs 5,000 which may extend to Rs 10,000.
Section 15 (2), which deals with possession of child pornographic material for dissemination, entails punishment up to three years jail term or fine or both.
Section 15 (3), which deals with use of such materials for commercial gains, provides for three years to five years jail term for first time offenders or with fine or both.
Repeat offenders can be awarded jail term ranging from five years to seven years along with fine.
The apex court set aside the Madras High Court ruling that said mere downloading and watching child pornography was not an offence under the POCSO Act and the IT Act.
The top court delivered its verdict on a plea challenging the Madras High Court order. (PTI)
