Ruling clears the air | Highland Post

The Supreme Court on September 23 set aside a controversial Madras High Court ruling that downloading and possessing sexually explicit material involving a minor is not a criminal offence, while urging Parliament to enact an ordinance to replace the term “child pornography” with “child sexually exploitative and abuse material (CSEAM)” under all relevant laws. The judgment held that the change in terminology would mark a significant shift in the way society and the legal system conceptualize and address the serious problem of child exploitation. The court directed all courts to henceforth stop using the term “child pornography” in their orders and judgments and instead use CSEAM to refer to such offences.

While making it clear that downloading child pornography is an offence, the Supreme Court in a detailed judgment listed out instances that would qualify as an offence under the POCSO and emphasised that mere possession of such content is also an offence under the POCSO. The court said that merely storing “child sexually exploitative and abusive material” (child pornography) without deleting or reporting it would indicate intent to transmit, which is an offence under the POCSO. The court also said that merely viewing it without downloading it would amount to an offence of “possession” under the POCSO Act. The court clarified that failure to report such an incident also constitutes an offence.

The spike in child pornography cases reflects the grim picture of online child sexual abuse in India. Overall, the incidence of child pornography offences in India has been steadily increasing over the past few years. This is due to the growth of the internet and the increasing demand for child pornography. Recently, the National Commission for Protection of Child Rights (NCPCR) met with representatives of major social media platforms to address issues related to child safety online and explore ways to protect them. In a recent meeting with representatives from companies like Google, YouTube, Meta, X, Snapchat, Reddit, Sharechat and Bumble, the commission sought to explore ways to protect children from explicit content and online exploitation.

The Supreme Court’s decision, however, is a crucial step in protecting children from online sexual abuse. Replacing “child pornography” with “child sexual abuse material” (CSAM) will better reflect the non-consensual nature of the content. This linguistic shift will enhance legal clarity and emphasise the seriousness of the offence. Amendments to the POCSO Act will now be required to include possession of CSAM as a separate offence, bringing it in line with the provisions of the Information Technology Act, 2000. Such amendments would address inconsistencies and provide clearer legal guidance in prosecuting the perpetrators. While the POCSO Act provides stricter punishment and procedural safeguards for child victims, the Information Technology Act provides better safeguards in case of dangers of consuming CSAM.