Editorials/Opinions Analysis For UPSC 08 February 2024

Contents:

1. Downloading Child Pornography – a serious offence under the IT Act
2. Protecting core Tiger habitats

Downloading Child Pornography – a serious offence under the IT Act

Context:

Recently, the Madras High court held that downloading child pornography was not an offence under Section 67B of the Information Technology (IT) Act, 2000.

Relevance:

GS II: Polity and Governance

Dimensions of the Article:

1. About the recent judgement: S. Harish vs Inspector of Police case
2. What is the flaw in the Judgement?
3. Section 67B(b) of the IT Act
4. Downloading child pornography is an offence:
5. What are the inconsistencies?
6. Conclusion

About the recent judgement: S. Harish vs Inspector of Police case:

• The Madras High Court in S. Harish vs Inspector of Police case held that downloading child pornography was not an offence under Section 67B of the Information Technology (IT) Act, 2000.  
• The court said that merely downloading the pornographic content onto his electronic gadget and watching it is private is not an offence.
• The court relied on the judgement of the Kerala High Court where it had been held that watching pornography in private space was not an offence under Section 292 of the Indian Penal Code (IPC).
  • The decision was taken by the court in 2016, when a criminal case was registered against a youth who had been watching pornographic material on his mobile phone on the roadside at night.
  • In this case, the police had filed the final report and cognisance had been taken by the High Court.
  • He was charged under the Section 14(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Section 67B of the IT Act.
• Hence, in both the cases, despite the presence of pornographic material on the mobile phone of the accused and the forensic science report confirming the same, the accused were not punished.
• These facts are sufficient to attract the application of Section 67B(b) of the IT Act.
• However, the High Court held that in order to constitute an offence, the accused must have published, transmitted, created material depicting children in sexually explicit act or conduct. 

What is the flaw in the Judgement?

• After analysing section 67B, the judgement of the High Court is contrary to the Section 67B sub-clause (b), which clearly delineates the act of the accused.
• The High Court referred to a precedent, without mentioning details, i.e., title or year, of that case, where the High Court of Kerala dealt with the scope of Section 292 of the IPC
  • It held that watching an obscene photograph or obscene videos by a person by itself was not an offence. The ratio of this case does not apply to the cases of child pornography, particularly the one under consideration.
• The Madras High Court used its inherent powers under Section 482 of the Criminal Procedure Code (CrPC) to prevent misuse of the process of court and quashed the judicial proceedings.
  • The Supreme Court has laid down certain guidelines in State of Haryana vs Bhajan Lal (1992) to exercise powers under Section 482 of the CrPC (or extraordinary powers under Article 226).
    • It held that such powers could be used where the allegations made in the first information report or the complaint, even if taken at face value and accepted in their entirety do not, prima facie, constitute an offence or make out a case against the accused.
• Hence, considering the above facts and circumstances, the Madras High court could not in its wisdom quash the judicial proceeding when an offence was clearly made out under Section 67B(b) of the IT Act.
• It is important to note that, the Section 15 of the POCSO Act punishes storage or the possession of child pornographic material only if it is done with an intent to share or transmit, or display or distribute, or for commercial purpose.

Section 67B(b) of the IT Act:

 It says that “whoever, – creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner’ shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees….’

• It has five sub-clauses, from (a) to (e).
• Sub-clause (a) talks about publishing or transmitting material depicting children engaged in sexually explicit act or conduct
• Sub-clause (b) deals with acts including downloading of child pornography material.
• Sub-clause (c) talks about cultivating, enticing or inducing children to [an] online sexually explicit relationship.
• Sub-clause (d) talks about facilitating abuse of children online
• Sub-clause (e) talks about recording abuse/a sexually explicit act with children.

Downloading child pornography is an offence:

• Watching adult pornography in privacy has been held as not to be an offence under Section 292 of the IPC both by the Supreme Court and High Court of Kerala.
• However, downloading sexually explicit material pertaining to children is clearly an offence under the IT Act.
• In none of the cases in India so far, the constitutionality of the Section 67B(b) has been challenged and its vires held unconstitutional.
• Hence, the High Court in the above case citing a precedent was a flaw.

What are the inconsistencies?

• The section 67 when read with Sections 67A and 67B of the IT Act form a complete code and the given acts are exclusively punishable under this code.
  • This section was amended in 2009 and included provisions that even seeking or downloading child pornography a specific offence.
• The main purpose of enacting special Acts such as the POCSO Act and making special provisions in the IT Act is to protect children from sexual exploitation and punish people involved in different forms of exploitation.
• The National Crime Records Bureau along with the Ministry of Home Affairs, made an agreement with the American National Center for Missing & Exploited Children.
  • Under the agreement, the government regularly gets geo-tagged CyberTipline reports to prosecute those who upload the child sexual abuse materials (CSAM) from anywhere in India.
• The term ‘child pornography’ implies consent which a child is not capable of giving. Hence the use of the term child sexual abuse materials (CSAM) will be better and appropriate changes with reference to these terminologies must be made in Indian laws.
• Similarly, the POCSO Act should also be amended and ensure that mere possession of CSAM be made a separate offence to remove inconsistency between the provisions of the POCSO Act and the IT Act.

Conclusion:

• The state Government must appeal against the judgement of the Madras High Court, else it will set a bad precedent for the State.

Protecting Core Tiger Habitats

Context:

Recently, the Government decided to disallow telephone towers in tiger habitats. The article analysis the impact of Communication infrastructure on our planet’s most endangered species, such as Tiger.

Relevance:

GS III: Environment and Ecology

Dimensions of the Article:

1. About the latest guidelines:
2. Harmful consequences of mobile towers:
3. Government efforts to protect these critical habitats:
4. Way Forward

About the latest guidelines:

• The Environment Ministry has issued guidelines prohibiting the installation of mobile towers in core and critical tiger habitats.
• This is a welcome move by the government to protect the most endangered species.
• These guidelines emphasise the need to balance connectivity and wildlife conservation.
• It says that, the protection and conservation of wildlife habitats should not get affected while providing connectivity to people in or near wildlife-rich areas.

Harmful consequences of mobile towers:

• In this age of digital connectivity, where mobile networks reach even the most remote corners of the globe and offers immense benefits for human populations.
• Their presence in tiger territories can have serious consequences on the animals that are already endangered.
• Setting up mobile towers can disrupt their natural environment.
• Tigers, like many other species, rely on vast, undisturbed areas for hunting, breeding and rearing their young and installing these towers can fragment their habitats.
• The habitat loss coupled by increased human-wildlife conflict can bring down the tiger population.
• Above all, the electromagnetic radiation poses a potential threat to the behaviour, health, reproduction and overall fitness of tigers and other wildlife. 
• Tiger habitats are sensitive areas, and even slight disturbances can have far-reaching consequences.

Government efforts to protect these critical habitats:

• Various organisations such as the World Wildlife Fund (WWF), Wildlife Conservation Society (WCS) and other governmental agencies have been working tirelessly to safeguard these critical areas.
• Their efforts involve:
  • Habitat restoration,
  • Anti-poaching measures,
  • Community engagement and
  • Scientific research to better understand tiger behaviour and ecology.
  • Establishment of protected areas, such as national parks and wildlife reserves.
    • These zones provide a haven for tigers and other wildlife, where human activities are carefully regulated to minimise disturbances.
• Apart from these efforts, environmentalists work closely with local communities to promote coexistence and sustainable land use practices.

Way Forward:

• At what cost do we expand our communications infrastructure? This is a critical question when it comes to protecting the habitat of some of our planet’s most endangered species, such as the tiger.  
• Despite these continued efforts, conserving tigers remains a tough battle.
• Encroachment by humans, poaching, habitat degradation, and the threat from mobile towers continue to jeopardise the future of these iconic animals.
• There is a need for Strategic planning along with zoning regulations to ensure that mobile towers are placed away from sensitive habitats and minimising their impact on wildlife.
• Adoption of alternative technologies, such as satellite or fibre optic networks, can provide connectivity without encroaching on tiger territories.
• Finally, the conservation of these endangered species lies on our ability to balance progress with conservation.