Source: Kerala High Court

Why in News?

Recently, the Kerala High Court in the matter of Parthasarathi M v. State of Kerala has held that there need not be any strict proof as regards the age of the model in every case of child pornography.

What was the Background of Parthasarathi M v. State of Kerala Case?

• In this case, several petitions were filed before the Kerala High Court by several persons.
• The petitioners sought to quash the charges against them under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and Section 67 of the Information Technology Act, 2000 (IT Act).
• One of the main arguments raised by the petitioners was that the age of the persons in the pornographic material alleged to have been recovered from them, cannot be proven to be below 18 years.
• The High Court analyzed the facts of their cases individually and passed judgment based on its conclusions.

What were the Court’s Observations?

• Justice K Babu observed that the provisions dealing with the offence of child pornography punishable under Section 15 of the POCSO and the offence of publishing or transmitting material in electronic form depicting children engaged in sexually explicit acts or conduct punishable under the IT Act are to be constructed emphasizing the viewpoint of the audience, the society at large. There need not be any strict proof as regards the age of the model in every case of child pornography.
• It was further held that the identity of the model also need not be established by the prosecution as it is practically impossible, and that insisting on the same would defeat the objective of the POCSO.

What are the Relevant Legal Provisions Involved in it?

Section 15 of POCSO

• This Section deals with the punishment for storage of pornographic material involving child. It states that—

(1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.

(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.

(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.

Section 67 of the IT Act

• This Section deals with the punishment for publishing or transmitting obscene material in electronic form.
• It states that whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is 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, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.