Strict proof not required to determine age in every case of child pornography: Kerala High Court
Updated On : April 17, 2024
In a significant decision, the Kerala High Court has ruled that strict proof of age is not necessary in every child pornography case, altering the legal landscape regarding the prosecution of such offences. The court emphasized that the crucial factor is whether the individual depicted appears to be a minor rather than conclusively proving their age to be below 18.
The judgment was issued in response to multiple petitions that sought to dismiss charges under Section 15 of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67 of the Information Technology Act, 2000 (IT Act). These sections deal with the possession and transmission of child pornography.
Petitioners in these cases had argued that the prosecution needed to definitively establish the age of those depicted in the pornographic content. However, Justice K Babu stated that in cases of child pornography, which is considered a societal offence, the visible age of the person in the content could suffice.
During the hearings, advocates Renjith Marar and John S Ralph served as amici curiae, offering differing views. Marar supported the view that the appearance of being a child should be adequate for legal purposes. At the same time, Ralph insisted that age should be explicitly proven unless the model is clearly an infant or toddler.
The court concluded that the aim of both the POCSO and IT Acts is to curb child pornography effectively. It aligned with the Supreme Court's perspective that obscenity should be judged from the viewpoint of an average person, thereby requiring a case-by-case determination of the model's age.
Justice Babu further clarified that explicit child-like appearance negates the need for strict age proof or expert testimony. However, in ambiguous cases where the model's age appears close to 18, the court acknowledged the necessity for expert opinions from paediatricians or forensic experts.
The court also adjusted the burden of proof in line with Chapter VII of the Indian Evidence Act based on the nuances of each case.
This ruling marks a pivotal shift in handling cases of child pornography in India, focusing on the protection of minors and ensuring justice without the stringent requirement of age verification in clear-cut cases.
Strict proof not required to determine age in every case of child pornography: Kerala High Court
April 17, 2024
In a significant decision, the Kerala High Court has ruled that strict proof of age is not necessary in every child pornography case, altering the legal landscape regarding the prosecution of such offences. The court emphasized that the crucial factor is whether the individual depicted appears to be a minor rather than conclusively proving their age to be below 18.
The judgment was issued in response to multiple petitions that sought to dismiss charges under Section 15 of the Protection of Children from Sexual Offences Act (POCSO Act) and Section 67 of the Information Technology Act, 2000 (IT Act). These sections deal with the possession and transmission of child pornography.
Petitioners in these cases had argued that the prosecution needed to definitively establish the age of those depicted in the pornographic content. However, Justice K Babu stated that in cases of child pornography, which is considered a societal offence, the visible age of the person in the content could suffice.
During the hearings, advocates Renjith Marar and John S Ralph served as amici curiae, offering differing views. Marar supported the view that the appearance of being a child should be adequate for legal purposes. At the same time, Ralph insisted that age should be explicitly proven unless the model is clearly an infant or toddler.
The court concluded that the aim of both the POCSO and IT Acts is to curb child pornography effectively. It aligned with the Supreme Court's perspective that obscenity should be judged from the viewpoint of an average person, thereby requiring a case-by-case determination of the model's age.
Justice Babu further clarified that explicit child-like appearance negates the need for strict age proof or expert testimony. However, in ambiguous cases where the model's age appears close to 18, the court acknowledged the necessity for expert opinions from paediatricians or forensic experts.
The court also adjusted the burden of proof in line with Chapter VII of the Indian Evidence Act based on the nuances of each case.
This ruling marks a pivotal shift in handling cases of child pornography in India, focusing on the protection of minors and ensuring justice without the stringent requirement of age verification in clear-cut cases.
