By Sanjay Raman Sinha
In a landmark judgment, the Supreme Court criminalised downloading, storing and viewing of child pornography, terming it as an offence under the Protection of Children from Sexual Offences (POCSO) Act. It thus set aside a Madras High Court judgment wherein a person accused of downloading and watching child pornography was acquitted. The High Court had held that mere viewing of such content doesn’t constitute a crime under the POCSO Act.
In the same vein, the Supreme Court proposed a new term for the offence: “child sexual exploitative and abuse material” or “CSEAM”. The bench ordered courts to use the term CSEAM henceforth in all their judicial pronouncements. This was essentially to differentiate between adult pornography, which is usually seen as a consensual act between adults, and child pornography wherein non-consensual sex with a minor is involved, often with force.
The bench suggested that the lawmakers should consider replacing the term “child pornography” with CSEAM, and till such legislative action is not taken, the centre may bring an ordinance to amend the POCSO Act for the purpose. This underlined the urgency and seriousness with which the Court viewed the matter.
Child sexual abuse and its online consumption merit an immediate and strong policy and legal measure. In 2023, the National Human Rights Commission had taken suo motu cognizance of a media report that the circulation of CSEAM had increased by 250 percent to 300 percent on social media in India. India tops online child sexual abuse imagery in the world, followed by Thailand. According to the US-based National Centre for Missing and Exploited Children figures, Indian users have uploaded 25,000 images or videos in the last past five months. Delhi accounts for the maximum uploads of child porn; the other states in which the grisly trend leaves its footprint are Maharashtra, Gujarat, Uttar Pradesh and West Bengal.
The National Crime Records Bureau states that every 15 minutes, a child is sexually abused in India, and mostly by people close to him/her. In many cases, the perpetrator records the heinous act on camera and uploads it. Pornographic sites thrive on such content and the dark web is rife with unrestrained child porn material.
By redefining child pornography and making it distinct from (adult) pornography per se, the apex court has sought to silo the crime as a separate legal category with its own lexicon and law. It is not that the term CSEAM has been coined by the Supreme Court. The term has been in currency worldwide to nomenclature child porn.
The apex court clarified the concept when it stated: “The term ‘child sexual exploitative and abuse material’ or ‘CSEAM’ more accurately reflects the reality that these images and videos are not merely pornographic, but are records of incidents, where a child has either been sexually exploited and abused or where any abuse of children has been portrayed through any self-generated visual depiction.”
The bench of Chief Justice DY Chandrachud and Justice JB Pardiwala also held that Section 15 of the POCSO and Section 67B of the IT Act penalise any form of use of child pornography, including downloading, storing and watching such content. The verdict was a long overdue.
Detailing the norms of criminality, the judgment noted: “Section 15 of the POCSO provides for three distinct offences that penalize either the storage or the possession of any child pornographic material when done with any particular intention specified under subsection(s) (1), (2) or (3) respectively.”
The investigative agency, however, has to establish the intention behind the crime: “Sub-section (1) of Section 15 penalizes the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same.”
Sub-section (1) of Section 15 penalises the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same.
The conviction rate in POCSO cases is abysmally low. In 2022, only three percent cases under the POCSO Act resulted in convictions. Keeping this and the possibility of the accused escaping the law, the bench has specifically cautioned the police and courts to be vigilant in examining the case.
Section 15 of the POCSO Act has classified punishment in its three-sub sections wherein fines have been imposed and prison term of up to three to five years
has been prescribed. The ruling has instructed police and courts to be “mindful…that while examining any matter involving the storage or possession of any child pornography, it finds that particular sub-section of Section 15 is not attracted, it must not jump to the conclusion that no offence at all is made out. The police must try to ascertain that if offence is not made out in one particular sub-section, whether the same is made out in the other two subsections or not”.
Child abuse doesn’t end with the assault happening behind closed doors as videos of the crime are often made and circulated, resulting in the consumption of this depraved act. To curb the dissemination of child porn, the Court has made it incumbent for social media intermediaries to mandatorily report cases of child abuse to local authorities. It further said that the intermediary cannot claim exemption from liability under Section 79 of the IT Act for any third-party data made available or hosted by it.
The Rajya Sabha had constituted a committee to address the issue of child porn. In its report, it was suggested the setting up a central body for online platforms to report IP addresses of those searching for child porn. The government can take into account this suggestion, among others, while formulating a national policy for child porn regulation.
Child porn victims face trauma at a very early stage in life. Hence, it proposed compassionate and comprehensive support to help victims heal and reclaim their lives. The Court proposed counselling and support group help for the victims. It also proposed sex education to tackle child porn menace.
It said: “Implementing comprehensive sex education programmes that include information about the legal and ethical ramifications of child pornography can help deter potential offenders. These programs should address common misconceptions and provide young people with a clear understanding of consent and the impact of exploitation.”
This verdict on child porn is an example of how existing laws can be effectively interpreted to provide an upgraded law to handle an existing crime.
The verdict aims at a holistic measure to manage all aspects related to child porn and lends a strict interpretation of the POCSO Act. Now the ball is in the government’s court and it has to ensure that perpetrators of child sexual abuse are brought to book and this voyeurism is fully reined in.