[This blog is authored by Tanya Sara George, is a 2nd year BA LLB (Hons) Student at Maharashtra National Law University, Mumbai]

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Introduction

In the recent judgement of S Harish v Inspector of Police  (hereinafter “Harish”), the Madras High Court quashed criminal proceedings against the accused, a 28-year-old man, who was guilty of downloading two videos of child pornography. Considering factors such as the age and future of the accused, the court adopted a rehabilitative rather than a punitive approach. The court also drew its reasoning from a Kerala High Court decision in Aneesh v State of Kerala (hereinafter “Aneesh”), wherein proceedings against the accused were quashed in a case entailing normative pornography.

This decision effectively renders the current framework, i.e., the POCSO Act coupled with provisions of the IT Act, ineffective in criminalising the offence of watching and downloading child pornography, potentially opening the floodgates for individuals to circumvent the law. This article attempts to study the repercussions of this decision while analysing the approach and rationale adopted in this judgement.

Through this article, the author attempts to analyse three seminal questions that arise from the judgement. The first is whether child pornography can be construed in the same ambit as that of normative adult pornography, the second is whether the court was correct in following the decision in the Aneesh case, and the third is whether the rehabilitative approach taken by the court subdues the punitive authority of the state to protect vulnerable sections of society. Further, the article delves into whether all forms of pornography must be criminalised.

The Distinctiveness of Child Pornography

In the present case, the court followed the decision in Aneesh, effectually implying that child pornography is equivalent to normative adult pornography. However, this view is inherently fallacious as child pornography ipso facto comprises visual representations of children being sexually exploited, thereby distinguishing itself from the consensual, legally recognised and intentionally produced nature of adult pornography.

The jurisprudence on criminalising child pornography hinges on equating child pornography to child sexual abuse. Child pornography is produced on the premise of minors, incapable of providing their consent, being induced into fulfilling sexual activities. This documentation inevitably results in quantifiable harm to the child, as reiterated by the court in New York v Feber. Even if the documentation has not been made public, the sexual nature of the act, compiled with the child’s inability to consent, results in a violation of the law against child sexual abuse.

Further, the Senate has found that the sexualisation of minors through pornographic images feeds the sexual appetite of sexual predators and leads to the heightened sexual exploitation of children. Research has also shown that recidivism in relation to child pornography is of a higher magnitude when compared to other categories, solidifying the stance that child pornography simply cannot be equated to the ambit of adult pornography.

Applying Ashworth’s principle of fair labelling, the documentation of children engaging in sexual acts cannot be referred to as ‘pornography’. According to this principle, the label must be indicative of the wrongfulness of an act as well as its severity. In the present case, construing the documentation of such acts as child pornography rather than ‘child sexual abuse’ or ‘child sexual exploitation’ vitiates the severity of the abuse documented while also connoting the commodification of such documentation with a consensual make-up, which it innately cannot possess.

Following Precedent

The court in Harish opined its rationale drawing from the judgement in Aneesh. The decision in Aneesh held that the viewing of pornography would not constitute a crime if done within one’s privacy and will begin to constitute a crime, giving rise to Section 292 of the IPC only when he circulates or publicly distributes it. In applying the same to Harish, the court noted that the two videos were in the possession of the accused, i.e., had not moved out of private domain and held that the act had not yet constituted an offence.

The flaw here is that the rationale from Aneesh cannot be applied as the law differentiates between child pornography and normative pornography. While it is well within one’s freedom to view adult pornography in private, the law per se criminalises the viewing of child pornography with explicit provisions such as Section 67B of the IT Act and Section 15 of the POCSO Act.

Furthermore, by adopting the persuasive value in Aneesh, the judgement has overlooked the precedent set forth in PG Sam Infant Jones v. State. In this case, holding that watching pornography in private will not constitute an offence, the court observed that the category of child pornography would not be entitled to this veil of freedom and stated that the mere viewing of child pornography would constitute an offence under the law.

Rehabilitation or Punishment vis-à-vis the Harm Principle

The court in Harish adopted a rehabilitative approach rather than a punitive one. The court quashed the proceedings while recommending that the accused attend counselling to cope with his addiction. When weighing the choice between rehabilitation and punishment, it is important to assess the harm resulting from the behaviour. This prompts the inquiry into whether the state can impose penalties for private sexual activities as the nature of the crime does not firsthand create harm.

The underlying principle in criminalising child pornography is the harm principle. According to Mill’s principle, the state wields power over any member of society for the purpose of preventing harm to them. The Wolfenden Committee, in its report, applied this principle to draw a balance between private activities and activities that necessitate the intervention of the state to protect vulnerable sections of society from exploitation. Thus, the exploitation of children warrants state scrutiny.

The US Justice Department has noted that the demand for child pornography drives individuals to sexually abuse minors or commission such offences. Congress has also reiterated that the child pornography industry works on a demand-and-supply market. Now, taking into consideration Feinberg’s offence principle, this once again reinforces the need for the punitive approach of the state rather than the rehabilitative approach in offences relating to the possession of child pornography. The principle holds that criminal prohibition is justified if, in doing so, a probable result is an effective means to an end to that offence.

Applying this principle, reducing the demand by strong deterrents such as penal punishment would result in an overall reduction in the consumption and subsequent production of child pornography in the state. Thus, taking into consideration these principles, the criminalisation of child pornography is in line with the state’s responsibility to protect vulnerable sections of society.

Should all forms of child pornography be criminalised?

As established earlier, there is no question as to whether the viewing of child pornography must be criminalised. Yet, a question remains as to whether the law should criminalise AI-generated, cartoon, or other technologically created child pornography. At this juncture, child pornography can be classified into two types. One involves real children committing sexual acts, and the other involves virtual depictions such as cartoons or AI-generated videos of children in sexual acts.

In analysing the latter, Mill’s harm principle cannot be applied individualistically as there is no ‘human’ being harmed when the child in the video is not in existence. Take, for example, the legal framework for child pornography in Japan. While the law now criminalises the production and viewing of child pornography in the state, the country hosts rampant production of child pornography in the form of Anime and Manga, circumventing this law.

If this category of child pornography is not criminalised, then the law creates a valid defence for individuals found viewing or downloading child porn. Any individual may state that the pornography in his possession merely consists of virtually generated child pornography rather than activities engaged in by real children. This creates great difficulty for the courts since they may not have methods to distinguish the two, as virtual child pornography is created to imitate real children.

As stated by Judge Briggs, the more such material is portrayed, the more acceptable it becomes to engage in sexual activity with children. Further, as per the Human Rights Council, the heightened access to this type of pornography subsequently increases the sexualisation of children. Therefore, the viewing and possession of all forms of child pornography, including those generated through AI or other forms of pseudo-images, should be criminalised by the law.

Conclusion

The judgement in S Harish v Inspector of Police has inevitably created a legal lacuna for individuals to engage in viewing child sexual abuse material with no legal repercussions. The court’s decision to quash proceedings on factors like the age of the accused severely undermines the effectiveness of the current legal framework in combating child pornography.

This case highlights the need for stricter enforcement of laws and underscores the distinctiveness of child pornography, which should be treated differently from adult pornography. Given the harm principle and the state’s duty to protect vulnerable sections of society, a punitive approach is essential.

Lastly, all forms of child pornography must be criminalised. While such materials may not directly harm a specific individual, they contribute to the normalisation and sexualisation of children, which elicits the same consequences and would be detrimental to society.