POCSO Act: Sexual exploitation of minors plagues societies globally, issue of grave concern in India: SC

Sexual exploitation of children is a widespread and deep-rooted problem plaguing societies globally and is a “grave concern” in India, the Supreme Court said on Monday. Citing the legislative history and schedule of the Protection of Children from Sexual Offences (POCSO) Act, 2012, the high court said that before the enactment of the Act, the country had no specific legal framework dedicated to dealing with sexual offences against minors.

A bench comprising Chief Justice DY Chandrachud and Justice JB Pardiwala said the rising incidence of child sexual abuse in India and the growing awareness of its long-lasting psychological impact on victims underlined the need for a special law.

It was stated that the POCSO Act was enacted to fill this gap and provide a robust legal mechanism to protect children from sexual offences as well as crimes such as sexual abuse, sexual harassment and pornography.

“Sexual exploitation of children is a widespread and deep-rooted problem plaguing societies across the world and is of grave concern in India,” the court said.

The Supreme Court delivered a landmark judgment stating that mere possession of child pornography material constitutes a punishable offence under the POCSO and IT Acts, even if the material is not further disseminated.

Justice Pardiwala, who wrote a 200-page verdict for the court, said that the erstwhile Indian Penal Code (IPC), though equipped to deal with sexual offences, did not explicitly recognise the various forms of sexual abuse that children could face. The court noted that the primary legislative intention 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 recording evidence, investigation and trial of offences. It said that the POCSO Act was designed to cover all forms of child sexual abuse, including sexual harassment, child pornography and aggravated sexual molestation, among others.

“The aim was to ensure the safety and dignity of child victims during the legal process, with specific provisions requiring that trials take place behind closed doors, that a trusted adult be present during the proceedings and that aggressive interrogation of child victims be prohibited,” the court said.

It was stated that the United Nations Convention on the Rights of the Child, which has been ratified by India, prescribes a set of standards to be observed by all States to safeguard the best interests of the child and to take specific preventive measures against all forms of exploitation of children, such as prostitution, unlawful sexual activities or pornographic representations and images.

“The POCSO is a statutory manifestation for the realisation of these constitutional provisions by providing a specialised framework to combat and prevent all forms of sexual abuse and exploitation, as set out in its lengthy preamble,” the court said.

The Supreme Court referred to the provisions of the Information Technology (IT) Act, which criminalise the use, transfer and publication of obscene material, including child pornography.

Reference was also made to the differing views of various high courts in the country regarding the ingredients required to establish a criminal offence under Section 15 of the POCSO Act and Section 67B of the IT Act.

While Section 15 of the POCSO Act relates to the punishment for storing pornographic material relating to children, Section 67B of the IT Act relates to the punishment for publishing or transmitting material depicting children performing sexually explicit acts, etc. in electronic form.

Section 15 of the POCSO Act provides for various punishments of varying imprisonment or fine or both. Under Section 15(1), which deals with possession of child pornography material, provides for a minimum fine of Rs 5,000 which may extend to Rs 10,000.

Article 15(2), which concerns possession of child pornography material for distribution, provides for penalties of up to three years’ imprisonment or a fine, or both.

Section 15(3), which deals with the use of such material for commercial purposes, provides for a prison sentence of three to five years for first-time offenders, or a fine, or both.

Repeat offenders can be sentenced to five to seven years in prison, plus a fine.

The Supreme Court set aside the Madras High Court’s judgment which had held that merely downloading and viewing child pornography does not constitute an offence under the POCSO Act and the IT Act.

The Supreme Court was ruling on a petition challenging the order of the Madras High Court.