Does age of model need to be proved in child pornography cases? Kerala High Court to examine

The Kerala High Court will consider pertinent questions regarding the relevance of the age of the "model" in child pornography cases. [Basil Eldhose v. State of Kerala].The questions emerged while the Court was considering a criminal revision petition moved by a man who was accused of committing offences punishable under Sections 15(1) of the Protection of Children from Sexual Offences Act 2012 (POCSO Act) and Section 67-B(b) of the Information Technology Act, 2000 (IT Act).These two offences pertain to possessing and/or transmitting child pornography.A Special Fast Track Court in Thrissur had dismissed the petitioner's plea to discharge him and instead, charged him under the above sections and scheduled the trial to begin on February 2..While considering the petition against the refusal of the trial court to discharge him, Kerala High Court judge Justice K Babu stayed the trial.One of the main arguments raised in the revision petition filed through advocate Sarath Babu Kottakkal was that the age of the persons in the pornographic material alleged to have been recovered from the petitioner's devices cannot be proven to be below 18 years to qualify them as children. To answer the question of whether the age of the model in child pornography needs to be ascertained and how to do the same, the Court appointed advocate Renjith Marar as amicus curiae to assist it in the matter. .Marar has now filed his written submissions analysing the provisions of the two Acts. He has found that while the term "child" is defined as a person under the age of 18, there is no clear cut definition of pornography, with the closest attempt in Indian law being that of obscenity under Section 292(1) of the Indian Penal Code, 1860. To decipher the term "child pornography" as defined under the Acts, Marar has opined that a few terms are important namely:visual depiction of sexually explicit conduct; involving a child; image indistinguishable from an actual child; orappear to depict a child. On this basis, the amicus has suggested that the offence of child pornography is not against the individual model alone, but against the entire society. It also gives emphasis to the view point of the audience, which is the society at large. "Viewed in this perspective, it is not necessary that there need be any actual abuse of the child for the depiction of the sexual activity to constitute child pornography. Hence, the age of the child “who” or “which” (In case of digital image) is the subject matter of the visual depiction need not be brought to light by strict proof. All that is necessary is that the subject model needs to appear to depict the child," it has been submitted. .The extensive report also goes through the jurisprudence regarding child pornography, not only in India, but also in the United States of America and the United KingdomThe findings from this analysis are then summarised as follows:There need not be any strict proof regarding the model's age. All that is necessary is that the model appears to be a child;In case where the model clearly appears to be a child, the fact can be determined by the investigating agency from their daily life experience during the course of the investigation;In cases of appearances of explicit nature, during the trial, the Court can ascertain and reach a finding as to whether the model appears to be a child from its daily life experience;The points (ii) and (iii) are always subject to challenge by the defence and the burden of proof shifts accordingly in consonance with Chapter VII of the Indian Evidence Act;In cases where the age of the model is difficult to ascertain easily or is marginal in nature, the opinion of the experts including paediatricians and forensic experts may be relied on by the investigating agency and the Courts during investigation and trial respectively; and In cases exception being pleaded as to the age of the model due to special circumstances it should be the burden of the party who pleads it to prove the existence of such special circumstances or exceptions as the case may be. .The Court will consider the revision petition and the amicus' arguments along with other connected matters.