CHILD PORNOGRAPHY AND INTERNET SUBCULTURES IN INDIA - A

LEGAL PERSPECTIVE
a Sumedha Gupta

ABSTRACT
Objectives: The primary objective of this study is to shed light on the pervasive issue of child
pornography on the internet and its detrimental impact on children globally. The research aims
to investigate the rise of child pornography online, emphasizing its role in the sexual
exploitation and misuse of children. Through a comprehensive analysis, the study seeks to
uncover the various dimensions of this disturbing phenomenon.

Methods: To achieve the stated objectives, the research employs a multifaceted approach. The
study begins by exploring the enthusiastic engagement of children with the internet,
emphasizing their use for learning, play, and communication. Subsequently, the dark aspects
of cyberspace are examined, focusing on the prevalence of child pornography and its potential
physical consequences. The second half of the paper delves into an investigation of legislative
measures and government initiatives in India designed to combat child pornography.

Results: The findings of this study reveal a concerning reality regarding the proliferation of
child pornography as a thriving business with far-reaching consequences for children worldwide.
The results highlight the urgent need to address the issue comprehensively, considering the
intersection of technology, legislation, and societal awareness. Additionally, the study provides
insights into the effectiveness of specific governmental initiatives in India, contributing to a
broader understanding of the challenges and opportunities in combating child pornography.

Conclusion: In conclusion, while acknowledging the efforts made by legislative measures and
government initiatives in India, this study discusses the limitations of current Indian law in
effectively tackling the issue of child pornography. The conclusion emphasizes the necessity of
addressing gaps in the legal framework and proposes specific measures to enhance the
prevention of child pornography in India. Overall, the study advocates for a comprehensive and
proactive approach to safeguarding children in the digital age, considering both national and
international perspectives.

Keywords: child pornography, internet, children, impact, sexual exploitation, abuse.

Received: 09/10/2023
Accepted: 08/01/2024
DOI: [Link]

aPh.D Research Scholar, Department of Law, Galgotias University, India, E-mail: [Link]@[Link],
Orcid: [Link]
1

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 Gupta, S. (2024). Child Pornography and Internet Subcultures in India - A Legal Perspective

PORNOGRAFIA INFANTIL E SUBCULTURAS DA INTERNET NA ÍNDIA

- UMA PERSPECTIVA LEGAL

RESUMO
Objetivos: O principal objetivo deste estudo é lançar luz sobre a questão generalizada da
pornografia infantil na internet e seu impacto prejudicial nas crianças em todo o mundo. A
pesquisa visa investigar o aumento da pornografia infantil on-line, enfatizando seu papel na
exploração sexual e no uso indevido de crianças. Através de uma análise abrangente, o estudo
procura descobrir as várias dimensões deste fenômeno perturbador.

Métodos: Para alcançar os objetivos declarados, a pesquisa emprega uma abordagem

multifacetada. O estudo começa explorando o engajamento entusiástico das crianças com a
internet, enfatizando seu uso para aprendizagem, brincadeiras e comunicação.
Subsequentemente, os aspectos obscuros do ciberespaço são examinados, focando-se na
prevalência da pornografia infantil e suas potenciais consequências físicas. A segunda metade
do artigo investiga uma investigação de medidas legislativas e iniciativas governamentais na
Índia destinadas a combater a pornografia infantil.

Resultados: Os resultados deste estudo revelam uma realidade preocupante em relação à

proliferação da pornografia infantil como um negócio próspero com consequências de longo
alcance para as crianças em todo o mundo. Os resultados destacam a necessidade urgente de
abordar a questão de forma abrangente, considerando a interseção de tecnologia, legislação e
consciência social. Além disso, o estudo fornece informações sobre a eficácia de iniciativas
governamentais específicas na Índia, contribuindo para uma compreensão mais ampla dos
desafios e oportunidades no combate à pornografia infantil.

Conclusão: Em conclusão, embora reconhecendo os esforços feitos por medidas legislativas e

iniciativas governamentais na Índia, este estudo discute as limitações da atual legislação
indiana para lidar efetivamente com a questão da pornografia infantil. A conclusão sublinha a
necessidade de colmatar as lacunas do quadro jurídico e propõe medidas específicas para
reforçar a prevenção da pornografia infantil na Índia. Em geral, o estudo defende uma
abordagem abrangente e proativa para proteger as crianças na era digital, considerando tanto
as perspectivas nacionais quanto as internacionais.

Palavras-chave: pornografia infantil, internet, crianças, impacto, exploração sexual, abuso.

1 INTRODUCTION
The extraordinary progress of technology in the contemporary world has both
positive effects (such as the simplification of complex tasks) and adverse effects (such as
the violation of the rights of individuals as a consequence of its misuse). The exploitation
of children is a subset of this more significant issue. Children today are constantly plugged
into many media, from computers to mobile phones. It's apparent that the internet, as well
as other types of contemporary technology, has made a lot of knowledge available that
may greatly benefit both children and adults. Unfortunately, children become victims of
the drug channels, illicit hackers, illegal prostitution, and child pornography that have
emerged as a result of the same internet and technology. The sexual abuse of minors is
what is meant by the phrase "child pornography." The use of children to fulfil the sexual
2

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demands of adults, at the expense of the child's own mental and physical needs, is
considered sexual exploitation.2 ‘Prostitution with minors, pornography, and sexual abuse
are all examples. The exploitation cycles of child prostitution and child pornography are
typically intertwined. Any depiction of a sexual act that is deemed demeaning for the sake
of entertainment or financial gain is considered pornographic. Thus, anything similar
featuring a child is deemed as “child pornography.”3
Since children do not have good instincts and knowledge about what is right and
wrong, anyone can easily lure them to work for them or act according to them. Due to a
multitude of factors, including isolation, a lack of parental attention, and unlimited
internet access, these crimes are occurring often within the four walls of the child's home.
Through different internet technologies, child sexual abuse is taking on new forms and
channels. Online child sexual exploitation exacerbates existing kinds of bullying,
stalking, and harassment against children. It has resulted in child sexual exploitation
through the development and transmission of child sexual abuse materials (CSAM). Child
safety has arisen as a serious problem all over the world, particularly in light of rising
rates of online sexual child exploitation of minors in various methods. Compared to real
space, cyberspace has distinct and different features.4 It is virtual, borderless and provides
some anonymity. With the rapid use of new technology, certain criminals are exploiting
these tools to perpetrate cybercrimes such as online CSAM and exploitation. (2002)
Cooper identifies three fundamental elements of internet usage: affordability,
accessibility, & anonymity (known as the “triple A engine”), that are aspects which draw
a large number of users ranging from the general public to sex perpetrators, to the use of
pornography.5 Both (2002) Quayle & Taylor & Sullivan & Beech (2003) argue that
downloading pictures, collecting, fantasizing, cognitive distortions, power, and control
may lead to the conduct of contact sex crimes among online pornography users. Calder
(2004) argued that there is a large gap between viewing child pornography and engaging
in sexual contact with a kid, but that the latter desire is inherent in the former.6

2 Geraldine Van Bueren, The International law On the Rights of the child, (1995, Brill publication) 275
3 Esposito, L. C, ‘Regulating the internet: the new battle against child pornography’ (1998) 30 Case Western Reserve
Journal of International Law 541
4Rahul Hemrajani, ‘Online Child Pornography Law in India’ (2017) SSRN Electronic Journal 2
5 Webb, L. Craissati, J. & Keen, S, (2007) ‘Characteristics of Internet Child Pornography Offenders: A Comparison

with Child Molesters’ 19 Sexual Abuse: A Journal of Research and Treatment 449 [Link]
9063-2 (Last visited on June 18, 2022)
6 Ibid. at 449

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The usage of communication & information tech for sexual misuse &/or
exploitation of minors is known as online child sexual exploitation. With the current
condition of the internet, there are two crucial difficulties associated with CSAM, i.e., the
growth of CSAM content on the internet and the accessibility of children to
digital pornographic materials (Underage Exposure). Given that one in every three
internet users is a minor, this poses a huge dilemma that requires immediate legal and
technical answers. Unfortunately, most of the transmission of CSAM and incidents of
Underage Exposure occurs on intermediary platforms over which they have no control or
are unable to assert influence.7

1.1 OBJECTIVE
Cyberspace has dark corners and alleys where crime thrives, and electronic
activities can have physical effects. Child pornography on the internet has not only
become a prosperous business, but it has also resulted in the sexual exploitation & misuse
of kids all over the world. This study’s objective is to investigate the rise of kid porn on
the web as well as its effects on children. It also put forth a variety of legislative measures
and government initiatives in India to fight child porn.
The use of ICTs expands the pool of possible victims, allows for the creation of
fake identities, and eases the transmission of dangerous materials to minors. This includes
material depicting child sexual assault. ICTs may also be used by traffickers to advertise
child sex tourism and attract new victims, some of whom may be minors. Human
traffickers may also conduct their operations mostly, if not entirely, over mobile phones.
The usage of mobile phones and the Internet aids criminals in concealing their identities
and obscuring their actions, lowering the risk of detection. The usage of the internet
allows for unparalleled societal acceptance for criminals. Online child sexual abuse
content may provide the mistaken appearance of societal acceptance. Internet networks
may also be used to share tactics for gaining access to victims and evading law
authorities.8

7 Yaman Akdeniz, ‘The Regulation of Pornography and Child Pornography on the Internet’ (1997) SSRN Electronic
Journal 7 [Link] (last visited on June 18,2022)
8 UNODC, Study on the Effects of New Information Technologies on the Abuse and Exploitation of Children, 54

(2015) [Link] (last visited on 25 june, 2022)

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2 THEORETICAL FRAMEWORK
2.1 PREVENTION OF CHILD PORNOGRAPHY THROUGH INTERNATIONAL
CONVENTIONS AND GUIDELINES
2.1.1 What is Child Pornography?
Child porn is a kind of sexual abuse of a child. Governmental law describes child
porn as “any visual depiction of sexually explicit conduct involving a minor (persons less
than 18 years old)”9. The Oxford Dictionary describes porn as “written or visual material
providing explicit description or depiction of sexual organs or behavior designed to
arouse sexual arousal.”10 Pornography is also defined as “content that depicts erotic
behavior (as in pictures or writing) intended to cause sexual excitement”11. Child porn is
described as “pornographic material that visually shows a juvenile engaged in sexually
explicit activity and a person purporting to be a minor nor engaged sexually explicit
conduct”12 under Article 9 of the 2001 Cyber Crime Convention. Minor porn is likewise
punishable under Article 9 of the Convention. It states that “whoever intentionally and
without right commits the following conduct: producing child pornography for its
distribution through a computer system; offering or making available child pornography
through a computer system; distributing or transmitting child pornography through a
computer system; possessing child pornography in a computer system or on a computer
data storage medium”.13
Statistics- As per the 2007 research carried out by the Ministry of Women & Child
Development, 53.22 per cent of ids reported suffering more than one sort of sexual
exploitation. Assam, Andhra Pradesh, Bihar, & Delhi had the biggest number of reported
instances. 21.90 per cent of minor subjects stated suffering extreme forms of sexual
exploitation, while 50.76 % reported facing additional kinds of sexual exploitation.14 A
report called "Child Sexual Abuse Material in India" says that the number of people
looking for violent child pornography on the internet has gone up by up to 200%. This
number is both alarming and disheartening. This presents a chilling reality of the extreme

9United Nations Department of Justice, Child Pornography, (2020) [Link]

pornography (last visited on July 10, 2022)
10Pornography noun - Definition, pictures, pronunciation and usage notes
[Link] (last visited on July 15, 2022)
11Pornography Merriam-Webster [Link] (last visited July 23
2022)
12Delhi High Court Legal Services Committee v Union of India & Another (2015) CRILJ 2054
13American civil liberties union, Text of the Council on Europe's Convention on Cybercrime Treaty (2022)

[Link] (last visited July 28, 2022)

14 Aatif, S, ‘Child Pornography and Sexual Abuse in Child Care Institutions’ (2007) 6 Institutionalised Children

Explorations and Beyond 35

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threat that India’s kids face during this lockdown period.15 In the year 2020, ―in a
worldwide integrated study of minor sexual harassment materials discovered online, at
19.87 lakh reports, India ranks first on the list, accounting for 11.7% of the total reports.
Pakistan occupies the second spot with 11.5 lakh reports, contributing 6.8% to the total.
Bangladesh secures the fourth position with 5.5 lakh reports and a share of 3.3%.16
There are national laws in every nation that control the behavior of its population,
as well as international treaties and conventions that promote the well-being and safety
of all people worldwide. Countries all across the world have signed agreements and
treaties meant to safeguard minors from sexual exploitation & misuse.

2.1.2 The UN Convention on Rights of Child, 1989

The UN Convention on Rights of Child (UNCRC), 1989 is a very detailed single
treaty in the human rights field that covers the traditional and recent trends of human
rights and the peculiar rights of the kid.17 Article 6 of the UN CRC guarantees the right
of children to life. It provides that “States Parties recognize that every child has the
inherent right to life and shall ensure to the maximum extent possible the survival and
development of the child.18 According to Article 34 of this convention, all members have
undertaken to protect and prohibit the sexual exploitation of children throughout the
world. Under this convention, signatories are obligated to take all necessary steps to
prevent any kid from being encouraged or forced into engaging in any unlawful sexual
action: being exposed to any type of commercial sexual abuse and distribution such
content that depicts child sexual abuse or exploitation; or engaging in any other activity
that would cause physical, mental, and emotional harm to the child.19 Another article of
this convention, i.e., Article 39, deals with empowering and obligating the signatory
nations to encourage and promote the integrity, dignity and health of the victims subjected
to sexual misuse & exploitation. This provision is necessary in order to maintain the
courage and hope of those victims to live their life without fear and trauma caused by the
violation of their rights as global citizens and innocent human beings.20

15A Chawla, ‘The Rise of Internet Child Pornography’ (2022) SSRN Electronic Journal 8
[Link] (last visited on 23 june, 2022)
16Kannan R, ‘Most online content on child sexual abuse from India’ (2022) The Hindu.
[Link]
(last visited on 19 june, 2022)
17 Eseni Azu Udu, ‘Human Rights in Africa’ (2011) Mbeyi & Associates 120
18 UN CRC, note 103, (1989) Article 6(1) & (2)
19 Ibid at Article 34
20 Ibid

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2.1.3 Optional Protocol on Sale of Child, Child Prostitution & Child Pornography
The General Assembly approved this protocol of UN on 2000, 25th May, while its
procedure has been in force since 18th January, 2002. This protocol has made the activities
like selling children, child prostitution and pornography, illegal. This has also put forth
the minimum requisites for the protection of the victims who were subjected to child
sexual abuse and also considered them to be deserving of proper compensation. Due to
this, this protocol is supported by many signatories and is a part of multiple international
collaborations. However, it is pertinent to note that Optical Protocol does not exclude
anyone from dual criminality concept.
There is also a drawback of this protocol that it does not always helps the child
victims in the criminal proceedings after their rights have been violated and they suffered
a loss. This protocol applies to only certain kind of sexual abuse. Therefore, in these kinds
of cases, the victims rely on the Article 38 and Article 39 of Child Safety Convention
which prevents minors from different kind of sexual exploitation rather than this protocol
in order to get the justice they deserve.
Child porn is described as “any portrayal, by whatever means, of a child
participating in actual or simulated explicit sexual actions, or any representation of a
child's genital parts for principally sexual objectives,”21 as per the 2nd Article of the
Optional Protocol. The Signatories are required by 3rd Article of the Optional Protocol to
make it illegal to “produce, distribute, disseminate, import, export, offer, sell, or possess
for the foregoing reasons child pornography as described in Article 2.”22 Pornography
includes live shows, photographs, movies, video recordings, and capturing or transmitting
digital images.
The Council is very worried regarding the rise in the presence and distribution of
child porn on the Web. It has consistently asked the Signatories and the international
community to take action as quickly as feasible to solve the situation. The adoption of
rules governing network providers’ responsibilities in relation to child porn has been
expressly urged. The Optional Protocol’s Article 3(1) (c), when rigorously explained,
“requires signatories to punish the person having the possession of child pornography
only where it is for the foregoing purposes i.e., for manufacturing, spreading, propagating,

21UN: Office on Drugs & Crime, Global Programme to end Violence against Children- Legal Framework (2022)
[Link]
children_legal-[Link] (last visited Aug 10, 2022)
22Ruchira Gupta, ‘Trafficking of Children for Prostitution & the UNICEF Response’ (2022) Asia Society 5

[Link] (Last visited Aug 19, 2022).

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importing, exporting, selling, or purchasing. Nonetheless, the Committee on the Rights

of the Child has urged governments to make simple possession illegal.”23 Apart from this,
the UN Commission on Human Rights Program of Action works to stop the Trafficking
of Juveniles, Child Exploitation, and Child Porn which strengthens the UN Convention
on the Rights of the Child & global attempts to penalize those who abuse minors for
sexually explicit reasons.

3 METHODOLOGY
The author conducted a review of various international Conventions and
Guidelines. It also reviewed the information exclusively related to the Indian legislation.

3.1 DETAILED ANALYSIS OF INDIAN LEGISLATIONS & GUIDELINES

New communication methods and modern technology have dramatically altered
the world in which we live and do our everyday business. Instead of conventional paper
files and documents, business people and companies are increasingly employing
computers to generate, transfer, and retain information in digital form. Paperless
transactions are eliminated by electronic commerce. Many legal rules now presuppose
the presence of paper-based records and documents that must contain signatures.
Customarily, the law of evidence has relied on written copies & oral deposition. As a
result, regulatory adjustments to enable e-commerce have become an essential
requirement.

3.1.1 Information Technology (IT) Act, 2000

Since there was a need to govern the electronic and digital activities in the nation
and to provide legality to lawful activities such as the admissibility of any electronic or
digital document. Apart from this, there was also need for governing the digital content
on social media networks which today has a huge impact on the people of this country.
To serve the same purpose, Information Technology Act 2000 was enacted, which
exclusively contained cyber legislation. The Information Technology Act of 2000 also

23European court of Human Rights, Guide on 3rd Article of Protocol No. 1 to the European Convention on Human
Rights, 34 (2022) [Link] (last visited Aug 23,
2022)

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aspires to build a legal framework in which all digital documentation and other electronic
activities are given legal sanctity.24
To stimulate e-commerce and offer legal admissibility and enforceability to
electronic documents and electronic signatures, the Indian government recognized the
need requirement for new legislation as well as relevant adjustments to current laws.
Cyber regulation is contained in the IT Act of 2000. The purpose of this Act is to lay a
lawful groundwork for electronic enterprises in India, & it would have a substantial
impact on all the electronic businesses of India as well as bring a huge development to the
Indian Economy.25The Information Technology Act of 2000 strives to provide a
legislative framework that gives legal protection to all digital documentation and other
electronic activity.
With respect to the present context, there are additional stipulations inserted to put
additional cyber violations under the ambit of the IT Act 2000. The new amendment
includes rules for data security & privacy and a clause to combat terrorist activities
utilizing electronic & virtual means. Sections 67 A through 67 C of the original Act were
incorporated into the Amendment. The provisions are concerned about “the publication
or transmission of content in the electronic form involving sexually explicit acts, child
pornography, and the requirement of the intermediary to maintain and keep such
information as the central government may specify..”
A. Amendment of Section 67 of the IT Act, 2000:
67th Section of the old Act is revised to lower the period of sentence for releasing
or sending indecent content in virtual format from five years to 3 years & to raise the
penalty from 100,000 to 500,000 Indian rupees. In addition, sections 67 A through 67C
has been added to the book. While 67th Sections A & B involves penalties for publication
or communication of items comprising of sexually indecent acts & Kids' pornographic
material in digital format, 67C Section tackles a middlemen's responsibility to retain &
maintain such data as might be stipulated for the period, method, & layout as the central
government may recommend.
Section 67A makes disseminating material featuring sexually explicit behavior a
crime offensive by a sentence of up to five years and a penalty of up to rupees 10 lakh.
This feature was critical in preventing MMS assaults & videotape voyeurism. However,

24The IT Act 2000

25SubhajitBasu & Richard Jones, ‘Indian Information and Technology Act 2000: review of the Regulatory Powers
under the Act’ (2005) 19 International Review of Law, Computers & Technology 209-230

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kid porn has been addressed solely under 67B Section of the IT Act of 2008. This Section
includes portraying children engaged in explicit sexual acts, creating content or electronic
photos, ads or encouraging the content describing kids in an indecent or inappropriate
form, etc., enabling online misuse of children or causing kids to commit in virtual
connections with 1 or more than one kid, etc. Because of the goals of this Section,
'Children' are those below 18 years of age. For the 1st conviction, the penalty is a sentence
for a period of up to 5 years & a penalty of rupees 10 lakhs. For subsequent convictions,
the penalty is imprisonment for seven years and a payment of ten lakh rupees.
To guarantee that publishing and transmission of historic masterworks or heritage
material, or pure scholarly works on education and healthcare, are not adversely affected,
genuine heritage material published or transmitted for its use in the teaching or literature,
etc., are explicitly exempted from the scope of this Section. However, showing video
graphs and images of unlawful conduct through the Internet all fall within this category,
as does generating pornographic films or video clips or distributing such clippings by
mobile or other modes of communication via the Online platform. Section 67C imposes
on intermediaries the obligation of preserving and retaining such facts as might be set for
such length & in the way the Central Govt. might specify. Noncompliance is an offence
by imprisonment for up to 3 years or a fine.
In the case of Avinash Bajaj v State,26 the defendant was detained because an
online user advertised the sale of the DPS sex scandal film. Despite the fact that Avinash
was taken into custody for violating 67th Section of the IT Act, the video was not
published on the online platform. Following the conclusion of this case in 2011, the
Intermediary Guidelines were enacted, stating that an intermediary's liability could be
discharged if they demonstrated that they had taken reasonable precautions to ensure that
offensive material was not made available through their online platform.
The sections relating to Child Pornography i.e., Section 67A and 67B are non-
bailable as per Section 77B of the Act, while others are bailable.

3.1.2 Indian Penal Code (IPC), 1860

IPC also has a variety of clauses in order to prevent children from sexual abuse &
the allocation of obscene items to minors. According to Section 293, IPC provides for
provision against the sale or distribution of obscene objects to any child who is under the

26Avinash Bajaj v State (2008) 150 DLT 769

10

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age of majority. In simple words, any person who sells allows renting, distribute, exhibit
or circulate any obscene or sexually explicit content, whether hardcopy or in electronic
form as provided under Section 292 of the Code, to any individual who is below the
twenty years of age, will be considered to be guilty with a sentence for a period up to 3
years & penalty up to 2000 Rupees. Whereas, if the person is convicted for the second
and subsequent times, they would be liable to be punishable for up to 7 years and a fine
of up to 5000 Rupees. It is pertinent to note that this offence is a cognizable offence and
can be tried by the magistrate.
Apart from this, Section 292 (2) of the Code provides for the definition of term
obscene which includes any content on book, pamphlet, writing, picture, painting or any
kind of figure which works in the “lascivious or appeals to the prurient interest or if its
effect, or (where it comprises two or more distinct items) the effect of any one of its items,
is, if taken as a whole, such as to tend to deprave and corrupt persons who are likely,
having regard to all relevant circumstances, to read, see or hear the matter contained or
embodied in it”27 In this regard, the person distributing such content will be found guilty
with a sentence for the period up to 2 years & a penalty of up to 2000 Rupees. Wherein
the person is convicted for the second or subsequent times, he or she will be liable for
imprisonment for a period up to 5 years & a penalty of up to 5000 Rupees.

3.1.3 The Protection of Child from Sexual Offences Act, 2012

The limitation of the IPC & the lack of any serious rules “for effectively
addressing and combating heinous crimes such as sexual exploitation and sexual abuse
of children gave birth to the Protection of Children from Sexual Offenses (POCSO) Act,
2012, as the very intention of Government establishments was to protect children from
offences of sexual assault, sexual harassment, and pornography and to facilitate adequate
legal machinery by enacting the Act.”28 The overall aim of the POCSO Act is to safeguard
kids from ―sexual exploitation & degradation because pornographic content, including
children, must be considered an extreme form of exploitation and hence the most heinous
crime against children. Under this act, the kid is described as an individual who is less
than the age of 18 years (section 2(1) (d)) and provides protection for them. Child includes
both the sex i.e., female and male children.

27IndianPenal Code 1860, S. 292

28RajeevSeth & R. N. Srivastava, ‘Child Sexual Abuse: Management and prevention, and protection of children from
Sexual Offences (POCSO) Act’ (2017) 54 Indian Pediatrics 949-953

11

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Sections 13 to 15 of Lesson 3 of the Act, 'Using Minor for Porn Activities &
Penalty’, provide for “punishments for using such a child for sexually explicit and
pornographic purposes and punishment for storing sexually explicit material involving
children”.29 Chapter III provided explicitly that if a child is used for any expression with
the intention of fulfilling a sensual desire or sexual indulgence as an offence. The POCSO
Act specifically protects and prevents minors from crimes related to sexual activities to
protect the interest, growth, development as well as well-being of the children. Provisions
are gender neutral. Section 13 of the Act30 defines the offence of child pornography,
stating that any person using ―the kid in any sort of media for sexual purposes and
satisfaction will be held guilty of child pornography contrast, section 11 (iii) considers
any act as sexual harassment of a child, if any object or media is shown to the kid porn
purposes.

3.2 THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES

(AMENDMENT) ACT 2019
This 2019 law amendment established the first legal definition of "child
pornography." This amendment was made to provide more clarity on issues like child
abuse and the consequences that follow. It incorporates punishments for offences that
were not previously explicitly described and expands the spectrum of offences. POCSO
Act Section 2(1) (da) was inserted & it describes: “Child porn refers to any portrayal or
representation of sexual act including a kid whether it is in the form of photographs,
videos, digital images, or computer-generated images that are indistinguishable from real
children. This also encompasses images that have been manipulated to appear as if they
depict a child, even if they were created or adapted.31

3.2.1 Combating Child pornography- Initiatives of the Government

1. In September 2018, the Home Affairs’ Ministry created a nationwide
cybercrime reporting platform to allow people to file online complaints about
child pornography.

29Hitabhilash Mohanty & Devpriya Banerjee, ‘An Analysis of Protection of Children from Sexual Offences Act, 2012
(POCSO ACT)’ (2021) SSRN Electronic Journal 6
30 Protection of Children from Sexual offences Act (2012), S.13
31Protection of Children from Sexual offences Amendment Bill (2019), S.3(2)

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2. The government restricts websites that contain severe Child Sexual Abuse
Material (CSAM) grounded on INTERPOL's "Worst-of-List," which is supplied
on a regular basis by the CBI, the National Nodal Agency for Interpol.
3. The Rajya Sabha’s Adhoc Committee in 2020, established by Shri M.
Venkaiah Naidu, the chairman, has submitted 40 comprehensive suggestions to
curb child sexual abuse and the spread of child porn on the web & additional
digital platforms. The Adhoc Committee made 40 recommendations, including
expanding the meaning of child porn, limiting access of kids to such material,
halting the spread of CSAM, holding ISPs and other online services responsible
for blocking access to minors and removing offensive content, and enforcing
stricter penalties for those who fail to comply.32
4. Operation Megh Chakra- The CBI launched a national anti-dissemination
and sharing of Child Sexual Abuse Material campaign code named "Megh
Chakra" (CSAM) in September 2022. The searches were carried out in response
to information supplied by Interpol's Singapore office about the online sale and
dissemination of material including child sexual abuse. Interpol's database of
images and videos related to child sexual exploitation (ICSE) may be used as
intelligence and investigations. It facilitates communication between investigators
who specialize in cases of sexual exploitation of minors. CBI also acts as a hub
for the International Child Sexual Exploitation (ICSE) database maintained by
Interpol.33

32 [Link] (last visited on 29 August, 2022)

33 Operation Megha Chakra: CBI carries out searches in 20 States & UTs for Child Sexual Abuse Material online
circulation cases (2022) [Link] (last visited on 30th September,
2022)

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Figure 1: INTERPOL’S ICSE

Image Source- INTERPOL

3.2.2 Opinion of Indian Judiciary

The Indian Courts, in many landmark judgments, have provided necessary
instructions for safeguarding minors against sexual misuse. In a case in Bombay High
Court34, various guidelines, i.e., to block pornographic websites, having proper rules in
cyber cafes so that the children cannot access the unsuitable material and no such content
would be distributed in these cafes which is unsuitable for the children.
In Avinash Bajaj v. State (N.C.T. of Delhi), it was determined that our country’s
law is insufficient to address the problem of controlling internet use to prevent the spread
of pornographic content. It was held that “It may be instructive to examine legislative
responses in other common law jurisdictions. In the United States, three pieces of
legislation have dealt with internet censorship: the Communications Decency Act (CDA),
which was established as part of the Telecommunications Act of 1996, the Child Online
Protection Act 1998 (COPA), and the Children Internet Protection Act 2003 (CIPA). The
CDA intended to make it illegal to use an interactive computer service to communicate
or exhibit in any way to people under the age of 18, any message depicting or displaying
sexual or excretory activity in a plainly objectionable manner.”35

34 Maria Kuttubudin Lokhandwala v The State Of Maharashtra And Another (2020) 1 BOMCR 210
35 Avinash Bajaj v State (2005) 116 DLT 427

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The Court, in its own motion v. the State of Punjab, ruled that “the Parliament
recently adopted the ‘Protection of Children from Sexual Offenses Act, 2012’that protects
children from Sexual abuse and violence, sexual harassment, and pornography. It is also
vital to have proper execution of this legislation. The National Commission and State
Commissions have indeed been recognized as the designated authority to monitor
compliance under the Act. Under this Act, Rules 2012 have also been drafted, and Rule-
6 specifies such monitoring, with particular powers allocated to the National Commission
and State Commissions.”36 Nonetheless, the National Commission and State
Commissions must begin carrying out their responsibilities under this Act.
In Kamlesh Vaswani v. Union of India, it was ruled that “the websites displaying
child pornography, particularly of youngsters aged 14 to 18, should be rigorously
prohibited. The court emphasized the gravity, importance, and urgency of the situation
and mandated that, by the stated order, all parties take proactive actions to try to control
the threat of child pornography.”37 additional instructions were released to the Secretary
of the Department of Transportation to file an individual affidavit within a week on the
question of whether the Department of Transportation or different departments of the
Govt. of India is proficient to release a directive to shut down websites that display porn.
The Supreme Court took a step back in the Shreya Singhal vs Union of India when
it interpreted section 79(3)(b) of the Information Technology Act to suggest that the
mediator (i.e., ISP) should terminate or disable the permit to unlawful contents only on
obtaining basic knowledge of the court ruling or on being informed by the relevant govt.
Hence, the ISPs are not responsible for the actions of any third parties whose data they
may host.38

4 RESULTS AND DISCUSSION

Even though the infrastructure of the above law is quite satisfactory, the
implementation of these clauses is not doing enough justice in the prevention of Child
pornography and related sexual abuse. Following are a few of such drawbacks which have
been observed over the years of administration of these legislations:
i)In India, there is no agency which monitors and reports all the pornographic data.

36 Court on its own motion v State of Punjab (2013) 3 RCR

37 Kamlesh Vaswani v. Union Of India & Others (2013) WP (C) 177
38 Shreya Singhal v Union of India (2015) SC 1523

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ii)Apart from the guidelines given by the Judiciary, there are no established rules
and regulations for filming pornography in India.
iii)Both the IT Act, 2000 (Section 67-B) & the Protection of Child from Sexual
Offences Act 2012 define term ‘child pornography’ differently. This creates a
conflict and contradictory explanation to the meaning of child pornography.
iv)The process of passing laws that are up to date with the latest technological
developments is yet another obstacle for governing bodies to overcome.
v)The POCSO Act punished only those individuals or entities who stock the child
porn items while not punishing those who attempt to buy, sell or distribute any
content depicting child pornography.
vi)There are no detailed guidelines for rehabilitation of children who were victims
for being compelled or lured to participate in child pornography.
vii)Under Section 84-C of the IT Act, attempting to commit the offense of child
pornography is only punishable if the attempt is made in furtherance of the act and
not solely on the basis of the attempt itself.
viii)As per the current law, intermediaries are not obligated to share third-party
information with any agency. The Supreme Court (SC) ruled in the Shreya Singhal
case 39 that either an order of the court or alert from the proper govt. or its agency
is required for an ISP to delete or prevent permit to unlawful items. As a result,
ISPs are not required by law to notify law enforcement authorities of any CSAM
sent across their networks.
ix)As per the current law, banks, credit card enterprises, & other entities in the
payment sector are not needed to notify authorities of any financial transactions
involving the purchase of Child Sexual Abuse Material.
x)Although a clause in the Information Technology Act i.e., Section 67-C, the
Central Government has yet to notify the sort of information to be kept and held
by intermediaries, as well as its length.
xi)There is no provision for the removal of such websites which, through artificial
intelligence, allows people to access the child pornography content of other
countries.

39Shreya Singhal v Union of India (2013) 12 SCC 73

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5 CONCLUSION & RECOMMENDATIONS

This Study can be concluded by stating that it is of utmost significance to prevent
children from succumbing to the e clutches of online child abuse and pornography. Child
pornography is a severe worldwide problem that law enforcement organizations have
failed to address fully. Despite efforts to restrict their growth, pornographic websites are
widely accessible and continue to increase every day. Children are an easy target, and
there is a rising market for child pornography. The most significant obstacle in this respect
is jurisdiction since pornographic content is disseminated chiefly over the Internet, which
is not hindered by national borders. This is evidence of the inadequate application of
current laws. There is a need for proper administration and implementation of legislation
and guidelines given by the parliament and courts in their landmark judgments. Pertaining
to this, the following are the suggestions and recommendations for the better
administration of the legislation as well as the general precautions to be taken by the
parents and relatives of the children.

5.1 RECOMMENDATIONS FOR INDIAN LEGISLATION AND ADMINISTRATION

➢ ISPs are the conduits via which CSAM actions spread. As a result, it is
critical that ISPs notify law and order authorities or any other designated entity as
soon as they become conscious of illegal content on their networks. For this,
proper instructions and rules are required on the part of the central government as
well as the state government to monitor and report all pornographic activities
closely.
➢ It should be made mandatory for the financial companies to be attentive
and cautious in case when CSAM transactions are uncovered and they should be
obligated to disclose them to police authorities or another regulated body.
➢ Technological businesses must be required to scan their systems and
networks with technology tools in order to detect and destroy CSAM.
➢ There is a need for clarity in the terms of the IT Act of 2000 & the POCSO
Act in order to avoid any malicious use by the offender.
➢ Updates to current laws and new laws must be constructed flexibly and
"technology-neutral" to keep pace with technological advancement without
requiring a frequent amendment to have a permanent and sustained impact.
➢ Combating ICT-enabled child abuse and exploitation requires specialized
staff with the necessary training and expertise. Professionals that are passionate
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about ending child exploitation often build international networks of connections.

The resulting bonds might pave the way for informal collaboration ahead of future
multinational probes.
➢ In order to shield children from the consequences of such crimes, the
investigative authorities may collaborate with non-governmental organizations
(NGOs) that focus on improving the lives of minors & reducing the incidence of
child misuse.
➢ By providing the necessary attention to the current laws against such
offences, the media may also play an active part in educating the public about
child abuse.
➢ The research community has the formidable issue of bridging the many
gaps in information on child sexual abuse and exploitation concerning ICTs.
Policymaking would also benefit from research on how specific innate and
extrinsic characteristics impact children's susceptibility to abuse and exploitation.

5.2 PRECAUTIONS TO BE TAKEN BY PARENTS AND RELATIVES OF THE

CHILDREN
➢ This issue can only be adequately addressed by beginning its elimination
at the family level. The first step is creating a family atmosphere where children
feel safe sharing anything and everything with their parents. Children benefit from
an environment where sharing is encouraged.
➢ Parents must bear responsibility for serving as instructors, friends, and
police officers to minors and teenagers since victims, in many instances, do not
have an awareness of the basis on which they have been lured into criminal
conduct.
➢ Families should have regular conversations with their children about the
dangers of child abuse, including sexual assault, and how to see red flags and get
help if needed. Parents should keep in regular touch with their children so that any
signs of abuse may be identified even if the child does not come forward
voluntarily.
➢ People should be taught to notice changes in children's behavior and
investigate the causes of abuse to protect the kid from long-term suffering.

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➢ The officials in charge of the schools should raise awareness regarding

child abuse. If a pupil's behavior changes, the parents shall be notified, & the kid
shall be questioned in a secure habitat to decide if or not misuse has happened.
➢ In the case of children without any guardians, investigative agencies
should collaborate with non-governmental organizations (NGOs) that aim to
protect these children and prevent child sexual abuse by foreign people.
➢ Everyone should make an attempt to resurrect the disintegrating joint
family system for more significant advantages, including kid protection.

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Internet’(1997)SSRNElectronicJournal
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Primary Resources

➢ Optical Protocol on Sale of Children, Child Prostitution and Child Pornography

➢ Information Technology Act, 2000
➢ Indian Penal Code, 1860
➢ The United Nations Convention on Rights of Child, 1989
➢ The Protection of Child from Sexual Offences Act, 2012

Judgments Used

➢ Avinash Bajaj v State (NCT of Delhi) (2005) 116 DLT 427

➢ Court on its own motion v State of Punjab (2013) (3) RCR

➢ Shreya Singhal v Union of India (2013) 12 SCC 73

➢ Kamlesh Vaswani v Union Of India & Others (2016) LQ SC 344

➢ Maria Kuttubudin Lokhandwala v The State Of Maharashtra And Another

(2020) 1 BOMCR 210

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