The Synthetic Victim: Why India's POCSO Law Must Interpret 'Child' as Appearance, Not Ontology

The Statutory Framework and the Problem of Synthetic Minors

In 2012, the parliament came up with gender-neutral legislation under the title 'The Protection of Children from sexual offences act' to take care of children against sexual offences. The act refers to the child as any individual under the age of eighteen years. Later in the year 2019, the law sought to revise it and introduced a new provision, and a new section 2(1)(da), which deals with child pornography, was added. This amendment reinforced the provision, with specific reference to the use of computer-generated images or pictures, regardless of whether they are in material form or not, and that they seemingly represent a child. Such technologically neutral drafting implies that there exists a certain level of legislative readiness to address digital harms.

Though the 2019 amendment was progressive, it had certain ambiguities. The dilemma is whether it is possible to state that a depiction contains a child when there is no depiction of a child, no harm to a child, and none of the children used or even modelled in the creative process? It is further complicated in cases where AI results in children that exist in no physically existing form, Such as Deepfakes, where adult bodies are synthesised, and child-like faces are created using synthetic images. This is the dilemma in the wider issues surrounding mens rea, attribution and causation in the case of an Autonomous AI system. Such cases put the classical theory of criminal liability to the test, where a human individual is supposed to be conscious. The current Indian jurisprudence on cyber offences has not addressed this new type of harm, which has raised issues regarding the interpretation of knowledge, intent, possession, circulation, and the responsibility of intermediaries or model writers.

The Ontological Paradox and the Limits of Traditional Victimhood

Statutory ambiguity becomes sharper when examined against the foundational assumptions of criminal law regarding victimhood and harm. There is no guidance provided in the existing Indian case law. According to conventional jurisprudence of CSAM, the existence of the child is presupposed as a fact of ontology. This supposition is shaken by the technologies that can create images of fictional minors but which, nevertheless, cannot be distinguished from actual ones. This forms an inherent interpretive paradox: the question of whether a synthetic minor that does not exist in the real world can ever meet the condition of being involved. It is not just semantic ambiguity; it is the normative basis of POCSO itself. The law is based on the safeguarding of children against exploitation, abuse, and secondary injuries. If a child in an image is fictitious, it can be said that no object of protection is involved. However, such a claim is dangerous to the preventative, harm-reduction, and deterrence goals that shape the contemporary regulation of CSAM.

The paradox arises because the legal category of child pornography, historically, assumes that there is an actual child, whose bodily integrity, dignity or autonomy is being invaded. Primarily, Indian jurisprudence on obscenity, digital exploitation, and sex criminality runs on the underlying belief that the victim is a recognisable human being. Contemporary generative AI destabilises this assumption and can create synthetic minors that cannot be told apart from real children. The artificial CSAM can be generated using AI tools. This highlights that virtual pornography, which contains no real child, does not invariably bring about the same direct victimisation.

'Involving a Child' as a Question of Legal Interpretation

This conceptual uncertainty cannot be resolved at the level of technology or metaphysics; it can only be addressed through legal interpretation. The more forceful is that, doctrinally and normatively, involvement should be construed to reflect the purpose of the statute and the social evils the provision is intended to solve. POCSO is neither a property right nor a defamation law in which the identity of a real victim forms a constituent of the crime. It is a child protection act based on the preventive logic expressed by Parliament. Therefore, to have a purposive interpretation, which aligns with Indian interpretative principles, the courts must interpret the phrase involving a child to mean the apparent existence of a child, rather than its biological existence. The fact that the amendment specifically selects the words used to represent the image, that is, that they seem to represent a child, reinforces this interpretation by indicating a change in standard between ontological and perceptual. The requirement ought to be fulfilled, then, should the imagery relate to the illusion, representation or symbolic presence of a child. The definitional paradox is resolved by breaking down the notion of 'child' as a biological term and 'childness' as a representational term.

The United Kingdom makes the creation of pseudo-photographs and fictitious representations of children a criminal offence, directly opposing the theory that a real child has to be the victim to complete the crime. Australia equally places criminalisation on the picture of supposedly fictitious individuals who are less than 18 years. These jurisdictions acknowledge that synthetic CSAM has negative effects on society, including the normalisation of sexualisation of minors, encouragement of real abuse image demand, and making it difficult to detect legal violations, whether the depicted person is still alive or not.

The similarities are significant: The statutory language of India, though not expressly so, is structurally consistent with an appearance-based liability regime. It could be said that the application of POCSO to the purely synthetic minors is overly expansive and leads to the criminalisation of conduct that does not involve tangible victims. Nevertheless, such an objection overlooks the functional harm established in criminological studies, as well as the operational risks, expressed in deepfake literature.

Why the Law Must Regulate Synthetic Representations of Minors

Beyond doctrinal coherence, the question must also be examined from the standpoint of regulatory purpose and social harm. The regulatory dilemma is not that of protecting identifiable children only, but rather the dilemma is one of how to prevent an ecosystem where the sexualisation of children becomes technologically feasible and diffused into society. Within this context, a strict interpretation of the concept of involvement would make POCSO somewhat outdated, allowing the wrongdoers to get away with it by creating imaginary children instead of victimising real ones.

Therefore, a doctrinally consistent way out is to take involving a child as referring to any image portraying or creating an impression of a child, whether actual or artificial. This will circumvent the logical contradiction of being able to exclude the use of synthetic minors and yet criminalise computer-generated images, as the amendment. It also maintains the legislative motive, the protective motif of the Act and the preventive reasons as understood in the global legislative practice. More importantly, it ensures that the Indian legal system remains adaptable to the technological advancements of artificial intelligence-based exploitation.

The involvement paradox thus does not show a statutory flaw but a statutory ambiguity. It may be remedied through interpretation rather than the overhaul of the legislation. However, until judicial or parliamentary clarification is provided, the enforcement agencies might not know the indicative threshold and prosecutorial approach in situations of synthetic minors.

The Author Is An LLM Student At National Law School of India University, Bangalore And Former Legal Consultant At Prohibition & Excise Dept.,Govt. Of Bihar.

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