Using a Child for Pornographic Purposes
Chapter Ninety-Six
Syllabus topic 4.2, the Protection of Children from Sexual Offences Act, 2012. Chapter III of the Act.
Pages 658 to 663 of 699
In one line
Section 13 defines the offence of using a child in pornography, section 14 punishes it, and section 15 punishes the storage and possession of the material.
In exam wording: sections 13 to 15 of the Protection of Children from Sexual Offences Act, 2012 define and punish the use of a child for pornographic purposes and the storage or possession of pornographic material involving a child.
Why the law has this at all
The harm here does not stop when the act stops.
A child assaulted in private suffers once, terribly. A child photographed suffers again every time the image is copied, and the copies do not decay. That is why the Act treats the making, the keeping and the circulating of such material as three separate wrongs, and why the 2019 amendment redrew all three.
The redrawing had a specific purpose. As originally enacted, section 15 punished storage for the purpose of distributing or transmitting with up to three years. That left the man who merely possessed a large quantity outside the section unless a purpose could be proved, and it made no distinction between somebody with one file and somebody running a trade.
So the substituted section 15 splits into three graded offences. Mere failure to delete, destroy or report with an intent to share attracts a fine and nothing more. Storage for transmitting, propagating, displaying or distributing attracts imprisonment up to three years. And storage for commercial purpose attracts a minimum of three years, rising to a minimum of five on a repeat. The gradation is by what the possessor meant to do with it.
Some words this chapter uses
Child pornography is defined in section 2(1)(da), inserted in 2019: any visual depiction of sexually explicit conduct involving a child, including images indistinguishable from an actual child and images created, adapted or modified but appearing to depict a child.
Use a child, by the Explanation to section 13, extends to involving a child through any medium in the whole chain of production and distribution.
Designated authority in section 15(1) is the authority to which the material must be reported, as may be prescribed by rules under section 45(2)(a).
Section 13: the definition
Whoever uses a child in any form of media (including a programme or advertisement telecast by television channels, or internet, or any other electronic form or printed form, whether or not such programme or advertisement is intended for personal use or for distribution), for the purposes of sexual gratification, which includes:
(a) representation of the sexual organs of a child; (b) usage of a child engaged in real or simulated sexual acts, with or without penetration; (c) the indecent or obscene representation of a child,
Using a Child for Pornographic Purposes
shall be guilty of the offence of using a child for pornographic purposes.
Explanation. The expression "use a child" shall include involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.
Three features of section 13 are asked. The words "whether or not intended for personal use or for distribution" mean that material made only for the maker himself is within the section. Clause (b) covers simulated acts and acts without penetration. And the Explanation makes the offence reach the whole chain, from preparation to distribution, so a person who never photographs anything may still "use a child".
Section 14: punishment
Sub-section (1). Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years, and shall also be liable to fine; and in the event of a second or subsequent conviction, with imprisonment for a term which shall not be less than seven years, and also liable to fine.
Sub-section (2), the cumulative rule. Whoever, using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in section 3, section 5, section 7 or section 9 by directly participating in such pornographic acts, shall be punished for those offences also under section 4, section 6, section 8 and section 10 respectively, in addition to the punishment provided in sub-section (1).
Sub-section (2) is worth stating carefully because it is easy to state backwards. It applies to the man who both used the child for pornography and directly participated in the acts. He is punished under section 14(1) and under whichever of sections 4, 6, 8 and 10 fits, the two punishments being cumulative, not alternative.
Section 15: storage and possession
Sub-section (1), failure to delete, destroy or report. 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 a fine not less than five thousand rupees; and on a second or subsequent offence, a fine not less than ten thousand rupees.
Sub-section (2), storage for circulation. Any person who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing it 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.
Using a Child for Pornographic Purposes
Sub-section (3), storage for commercial purpose. 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
- on a 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.
Note the two exceptions built into sub-section (2), because they are the answer to an obvious objection. Storage for the purpose of reporting, as prescribed, and storage for use as evidence in court, are outside the sub-section. Without them, an investigating officer or a Special Public Prosecutor holding the material would be committing the offence.
A worked example
A man photographs a child in a sexual act and keeps the images on his computer.
What offence in taking them? Section 13: using a child in a form of media for the purposes of sexual gratification, including the usage of a child engaged in real or simulated sexual acts.
He says the pictures were only for himself. That is no answer. Section 13 applies whether or not the material is intended for personal use or for distribution.
What is the punishment? Not less than five years and fine, section 14(1); and not less than seven years and fine on a second or subsequent conviction.
He also participated in the acts photographed. Then section 14(2): he is punished under section 4, 6, 8 or 10, whichever applies, in addition to the punishment under section 14(1).
Now a different man is found with such images on his phone. Which sub-section of section 15?
He kept them and did nothing, intending to share them. Section 15(1): he stored or possessed the material and failed to delete, destroy or report it to the designated authority, with an intention to share or transmit. The punishment is a fine of not less than five thousand rupees, rising to ten thousand on a repeat.
He kept them in order to circulate them. Section 15(2): storage for transmitting, propagating, displaying or distributing, punishable with up to three years, or fine, or both.
He was selling them. Section 15(3): storage for commercial purpose, not less than three years up to five, or fine, or both, and on a repeat not less than five up to seven, and fine.
Using a Child for Pornographic Purposes
A police officer holds the same images in a case file. He is outside section 15(2), which excepts storage for the purpose of reporting as prescribed, or for use as evidence in court.
The images are computer generated and no real child was photographed. They may still fall within "child pornography" as defined in section 2(1)(da), which includes a digital or computer generated image indistinguishable from an actual child, and an image created, adapted or modified but appearing to depict a child.
Distinctions
| Section 15 | What is stored, and why | Punishment |
|---|---|---|
| (1) | Stored or possessed, and not deleted, destroyed or reported, with intent to share or transmit | Fine not less than five thousand rupees; ten thousand on a repeat |
| (2) | Stored for transmitting, propagating, displaying or distributing, except for reporting or use as evidence in court | Up to three years, or fine, or both |
| (3) | Stored for commercial purpose | Three to five years, or fine, or both; five to seven years and fine on a repeat |
| Section 13 | Section 15 | |
|---|---|---|
| The conduct | Using a child in any form of media for sexual gratification | Storing or possessing the material |
| Reach | Preparation, production, offering, transmitting, publishing, facilitation and distribution, per the Explanation | Possession, graded by purpose |
| Punishment | Five years minimum, seven on a repeat, s.14(1) | Fine to seven years, depending on the sub-section |
| Section 14(2) | Effect |
|---|---|
| Offence under s.3 committed while using the child | Punished under s.4 in addition |
| Under s.5 | Under s.6 in addition |
| Under s.7 | Under s.8 in addition |
| Under s.9 | Under s.10 in addition |
What this does NOT mean
Section 13 is not confined to material meant for circulation. It applies whether or not the programme or advertisement is intended for personal use or for distribution.
It is not confined to real acts. Clause (b) covers a child engaged in real or simulated sexual acts, with or without penetration.
It is not confined to the photographer. The Explanation extends "use a child" to involving a child through any medium for preparation, production, offering, transmitting, publishing, facilitation and distribution.
Section 14(2) is not an alternative punishment. The offender is punished under the relevant assault section in addition to section 14(1).
And section 15 does not punish everybody who holds such material. Storage for reporting as prescribed and for use as evidence in court is expressly excepted from sub-section (2).
Quick revision
- 13: using a child in any form of media, including a television or internet programme or advertisement, electronic or printed, whether or not intended for personal use or distribution, for the purposes of sexual gratification, including the representation of the sexual organs of a child, the usage of a child in real or simulated sexual acts with or without penetration, and the indecent or obscene representation of a child; and "use a child" includes involving a child through any medium for preparation, production, offering, transmitting, publishing, facilitation and distribution.
- 14(1): not less than five years and fine, and not less than seven years and fine on a second or subsequent conviction.
- 14(2): where the offender directly participates and commits an offence under s.3, 5, 7 or 9, he is punished under s.4, 6, 8 or 10 respectively in addition.
- 15(1): storing or possessing and failing to delete, destroy or report to the designated authority, with intent to share or transmit: fine not less than five thousand rupees, ten thousand on a repeat.
- 15(2): storing for transmitting, propagating, displaying or distributing, except for reporting or use as evidence in court: up to three years, or fine, or both.
- 15(3): storing for commercial purpose: three to five years, or fine, or both; five to seven years and fine on a second or subsequent conviction.
- Both s.14 and s.15 were substituted by Act 25 of 2019 with effect from 16 August 2019.
Using a Child for Pornographic Purposes
Test yourself
1. What is the offence under section 13? Using a child in any form of media, including a programme or advertisement telecast by television channels or internet or in any other electronic or printed form, whether or not intended for personal use or for distribution, for the purposes of sexual gratification, which includes the representation of the sexual organs of a child, the usage of a child engaged in real or simulated sexual acts with or without penetration, and the indecent or obscene representation of a child.
2. How wide is the expression "use a child"? The Explanation to section 13 makes it include involving a child through any medium like print, electronic, computer or any other technology for the preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.
3. What is the punishment under section 14? Imprisonment for not less than five years and fine; and on a second or subsequent conviction, not less than seven years and fine.
4. What happens if the offender also participated in the acts? He is punished under section 4, 6, 8 or 10, as the case may be, in addition to the punishment under section 14(1), section 14(2).
5. Distinguish the three sub-sections of section 15. Sub-section (1) punishes storing or possessing and failing to delete, destroy or report with an intention to share or transmit, by a fine of not less than five thousand rupees, and ten thousand on a repeat. Sub-section (2) punishes storing for transmitting, propagating, displaying or distributing, with up to three years, or fine, or both. Sub-section (3) punishes storing for commercial purpose, with three to five years on a first conviction and five to seven years with fine on a repeat.
Using a Child for Pornographic Purposes
6. Who is outside section 15(2)? A person who stores the material for the purpose of reporting, as may be prescribed, or for use as evidence in court.
7. Does the material have to depict a real child? Not necessarily. "Child pornography" in section 2(1)(da) includes a digital or computer generated image indistinguishable from an actual child, and an image created, adapted or modified but appearing to depict a child.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.