Replace ‘child pornography’ with ‘child sexually abusive and exploitative material’: SC | Latest News India

The Supreme Court on Monday quashed 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 sexual abuse material (CSEAM)” under all relevant laws. The judgment said the change in terminology would mark a significant shift in the way society and the legal system conceptualise and address the serious problem of child exploitation.

A bench comprising Chief Justice of India Dhananjaya Y Chandrachud and Justice JB Pardiwala highlighted the serious concerns surrounding child pornography, and stressed the delicate balance between technological realities and legal protection of children. 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.

In a detailed judgment, the court gave an expansive interpretation of the relevant provisions of the Protection of Children from Sexual Offences (POCSO) Act pertaining to child exploitative material, when it suggested that Parliament should replace the term ‘child pornography’ with CSEAM to bring about a transformative impact on the legal framework, public perception and the overall fight against child abuse.

The court reserved its judgment in the case on April 19, saying it raised crucial questions about the interpretation of laws meant to protect children from exploitation in the digital age.

The case follows a January 2024 ruling by Justice N Anand Venkatesh of the Madras High Court, which quashed criminal charges against a 28-year-old man accused of downloading and viewing pornographic content featuring children.

Justice Venkatesh ruled that merely viewing child pornography does not constitute an offence under the POCSO Act or the Information Technology Act, 2000. According to the judge, a child or children must have been used for pornographic purposes for charges to be filed under the POCSO Act, implying that passive consumption without direct involvement does not meet the legal threshold for criminal conduct.

The Supreme Court held that Section 67-B of the Information Technology Act, which punishes publishing, transmitting or creating material depicting children in sexually explicit acts, does not extend to mere possession or viewing of the same. Justice Venkatesh held that the accused in the instant case had neither published nor transmitted the content and therefore his actions, though morally reprehensible, did not amount to an offence. “Since he did not use any child or children for pornographic purposes, this can at best be construed as a moral lapse on the part of the accused,” the judge said.

This interpretation of the law drew a strong reaction from the Supreme Court. During an earlier hearing in March, the court criticized the high court’s ruling as “horrific” because it questioned the legal soundness of the impugned judgment. “How can a single judge say this? This is horrible,” the court said, agreeing to examine the soundness of the high court’s judgment.

While deliberating on arguments in April, the Supreme Court noted the complexity of defining criminal liability in cases involving digital content. It noted that while the act of a child viewing pornography may not directly constitute an offense, the creation and distribution of child pornography constitutes a serious violation of legal and ethical standards.

The court stressed that possession of such material must be taken seriously as it sustains a market that exploits vulnerable children.

It recognised the wider implications of the ruling for child protection law in India as it accepted the appeal filed jointly by NGOs Just Rights for Children Alliance and Bachpan Bachao Andolan.

Senior advocate HS Phoolka, representing the NGOs, argued that the Supreme Court’s judgment undermined the protective intent of the POCSO Act and the IT Act. Phoolka stressed that child pornography constitutes the exploitation of minors and therefore any interaction with such content violates the spirit and intent of the law. He said the Supreme Court’s decision wrongly suggested that mere possession was not punishable, thereby sending a dangerous message that could embolden offenders.

Senior advocate Swarupama Chaturvedi appeared for the National Commission for Protection of Child Rights (NCPCR) in the case, challenging the reasoning of the verdict. Allowing the appeal against the verdict, the Supreme Court resumed the criminal prosecution in the case.