The Lacuna In POCSO 2012 In Terms Of Exposure Of Children To Pornography

Such insight on the part of the legislature was commendable, and it's appreciable that a specific provision exists to deal with such incidents occurring to children. However, the section has a major legislative lacuna, which allows for a possible particular kind of interpretation of the term 'pornographic purpose', which can allow perpetrators to get away with it. This article delves into the legislative lacuna in this section and offers observations and suggestions for fixing them.

India is rife with sexual abuse of children and harassment in general. It is not unknown that in India, early exposure of children to pornography is a phenomenon. Such intentional exposure is, without doubt, socially and even legally recognised as an offence in various legislations^[1]. Unfortunately, such incidents often go unnoticed, unreported, and unprosecuted, rarely adding to the overall statistics. Even finding cases under the POCSO Act dealing with this issue is a hard task, despite the existence of a dedicated section for this offence.

This is highly troublesome though, as the threat and undesirable effects of exposure to pornography are the greatest for children. As is often the case with sexual offences against children, children may not understand or even realize that they've been exposed to pornography. Due to their lack of understanding of the matter or because of fear or the shame involved, they may find it extremely hard to convey to their parents or guardians that they've been exposed to pornography. Multiple studies have shown the highlydamaging effect unwanted exposure to pornography can have on children, ranging from addiction to pornography, physical and mental effects on the body, and aggression, both physical and sexual, among other unwanted consequences. Therefore, it assumes great importance that effective legal systems and frameworks be developed for the prevention of sexual harassment of children by way of intentional exposure to obscene media and the punishment of offenders for the same. Thus, it is essential that the lacuna, as identified in Section 11(iii) of POCSO, must be corrected to ensure prevention and protection against such acts.

With regard to the severe consequences the offence may have on the overall trajectory of a child's life, as discussed above, it is imperatively vital that POCSO, enacted especially to protect children from offences of a sexual nature, deals with an offence of inherently sexual nature such as intentional exposure to pornography when committed against a child.

The Act commendably appears to deal with the issue of intentional exposure of children to pornography in general, under Section 11(iii), which provides that a person is said to commit sexual harassment upon a child when such person with sexual intent – shows any object to a child in any form or media for pornographic purpose.

Herein, however, lies a puddle of interpretation, as nowhere in the act has the phrase 'pornographic purpose' been defined. As per the research conducted in the course of writing this article, 'Pornography' or 'porn' remains undefined in legal terms. Instead, pornography or porn has generally been covered under various provisions in various legislations dealing with 'obscene' content. The legislature has also taken the effort to define “child pornography” under Section 2(da), inserted via an amendment to the POCSO Act in 2019^[2].

Furthermore, at the time of writing, no meaning appears to have been ascribed to the term 'pornographic purpose' by the legislature. Though the judiciary has dealt with cases under Section 11(iii) of POCSO and has impliedly held the act of exposure of child to porn to be an offence falling within the meaning of Section 11(iii)^[3], there appears to be no judgment wherein the phrase 'pornographic purpose' has been defined. This thus allows for the plausible possibility of an interpretation that such exposure of a child to any pornographic media argued not to be done for 'pornographic purpose' may be made to escape the ambit of this section of POCSO, especially under the literal rule of interpretation. This is further bolstered by a requirement to prove 'sexual intent' for bringing an act under this section, which has its own sphere of complicatedjurisprudence.

While such an argument is likely to be taken as an absurdity by the court and is rather likely to be discarded by the judiciary by applying the mischief rule of interpretation in such case, there still exists a risk that in certain instances such an argument may be brought up, in significant detriment to the child victim of such act, as exposure of children to pornography, has largely been recognised world over as an act of sexual harassment.

'Pornographic purpose' can be interpreted to mean various things. Mainly, an understanding can be drawn by having reference to Section 13 of POCSO Act which deals with the use of children for pornographic purposes, which under the ambit of the section largely means the use of the child in the production, propagation and/ or distribution of porn in any manner, including the depiction, real or virtual, of the child for 'pornographic purposes'. Therefore, it can end up being argued that an offence under Section 11(iii) would only lie when a child is exposed to pornography for such purposes as the production, propagation and/ or distribution of porn in any manner and not for the mere exposure of a child to porn with or without his consent or wish.

The argument for the same is based on the record of certain absurd judgments made by courts of law, which took too strict of a literal approach, resulting in absurd judgments which then had to be corrected by higher courts, which causes unnecessary delay, controversy, and trauma to the child, with the risk that till the time of its correction such judgments may be relied upon or act as precedent.

It is quite unlikely that the legislature could have intended for the non-application of section 11(iii) of POCSO and the punishment under it to an offender just because 'pornographic purpose' was missing. Therefore, it is highly suggested that the legislature take steps to expand the definition of 'pornographic purposes' to also include intentional exposure of a child to porn. Alternatively, the legislature can do away with the phrase 'pornographic purposes' in Section 11(iii). This is further needed as this will allow for better dealing of such offences against children and will act as a greater deterrent to offenders from committing such act(s) against children.

For the time being, the definition of 'pornographic purposes' as under Section 11(iii) of POCSO doesn't appear to be contested, nor seems to be requested to be clarified by the judiciary. However, for the overall interest of children and society, the judiciary can, in the meanwhile, engage in the judicial exercise of defining the scope of the term 'pornographic purposes' with respect to section 11(iii). The judiciary can do this to provide greater clarity on whether an offence of intentional exposure of a child to pornography without 'pornographic purposes' would technically fall under the section or not and, therefore, provide greater legal certainty over the issue.

The intentional exposure of children to pornography or obscene content has been a long-existing menace, especially putting at risk the vulnerable children of the world. Special acts like POCSO had been enacted specifically for the task of tackling sexual offences against children efficiently and effectively. In light of this, the critical flaw in terms of legislative drafting that undermines the intent of Section 11(iii) of POCSO Act must be fixed. Section 11(iii) of POCSO must be suitably amended and/ or interpreted to either squarely include within its ambit the act of intentionally exposing a child to pornography or obscene content, regardless of whether it is for 'pornographic purposes' or not. Alternatively, it must be clarified that such intentional exposure not for 'pornographic purposes' doesn't fall within its ambit, thus highlighting a legislative gap which needs immediate fixing in order to avoid legal complexities and unnecessary trauma to child victims.

Views are personal.