Storing, watching child pornography a crime; Supreme Court Proposes New Name for Offence

Supreme Court: The bench of Dr. DY Chandrachud, CJI and JB Pardiwala, J delivered landmark judgment on Child Pornography and held that Section 15 of the POCSO and Section 67B of the IT Act penalise any form of use of child pornography, including storing and watching of such pornographic content.

Here is a brief overview of the judgment running into 200 pages

“Child sexual exploitative and abuse material” or “CSEAM”

The Court observed that the term “child pornography” is a misnomer that fails to capture the full extent of the crime and that the use of the term “child pornography” can lead to a trivialization of the crime, as pornography is often seen as a consensual act between adults. The Court, hence, coined a new term i.e. “child sexual exploitative and abuse material” or “CSEAM”, which 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. Stating that the term “child sexual exploitative and abuse material” (CSEAM) rightly places the emphasis on the exploitation and abuse of the child, highlighting the criminal nature of the act and the need for a serious and robust response, the Court forbid the courts from using the term “child pornography” and instead the term “child sexual exploitative and abuse material” (CSEAM) should be used in judicial orders and judgements of all courts across the country going forward.

Sex Education

“In India, the misconceptions about sex education are widespread and contribute to its limited implementation and effectiveness. Many people, including parents and educators, hold conservative views that discussing sex is inappropriate, immoral, or embarrassing. This societal stigma creates a reluctance to talk openly about sexual health, leading to a significant knowledge gap among adolescents.”

The Court also stressed upon imparting positive age-appropriate sex education to prevent youth from engaging in harmful sexual behaviours, including the distribution, and viewing of CSEAM.

Observing that it was important to address misconceptions around sexual health, the Court said that positive sex education will focus on providing accurate, age-appropriate information about sexuality, consent, and respectful relationships, which can counteract the distorted perceptions often associated with the consumption of child pornography. It can also help foster greater empathy and respect for others, reducing the likelihood of engaging in exploitative behaviours. Comprehensive sex education programs also teach youth about the importance of consent and the legal implications of sexual activities, helping them understand the severe consequences of viewing and distributing child pornography.

Obligation to report

Considering that social media intermediaries do not report such cases of child abuse and exploitation to the local authorities specified under POCSO and rather only comply with the requirements stipulated in the MOU, the Court held that in view of the salutary object and the mandatory character of the provisions of Section 19 and 20 of the POCSO read with Rule 11 of the POCSO Rules, an intermediary cannot claim exemption from the liability under Section 79 of the IT Act for any third-party information, data, or communication link made available or hosted by it, unless due diligence is conducted by it and compliance is made of these provisions of the POCSO. Such due diligence includes not only removal of child pornographic content but also making an immediate report of such content to the concerned police units in the manner specified under the POCSO Act and the Rules thereunder.

In view of the overriding effect of the POCSO Act and the rules thereunder, merely because an intermediary is in compliance of the requirements specified under Section 79 of the IT Act, will not absolve it of any liability under the POCSO, unless it duly complies with the requirements and procedure set out under it, particularly Section 20 of POCSO Act and Rule 11 of the POCSO Rules.

Point-wise Conclusion

“Child sexual exploitation is one of the most heinous crimes imaginable, and the offence of Child Pornography is equally as heinous, if not more.”

1. 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. It is in the nature and form of an inchoate offence which penalizes the mere storage or possession of any pornographic material involving a child when done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc.

2. 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. The mens-rea or the intention required under this provision is to be gathered from the actus reus itself i.e., it must be determined from the manner in which such material is stored or possessed and the circumstances in which the same was not deleted, destroyed or reported. To constitute an offence under this provision the circumstances must sufficiently indicate the intention on the part of the accused to share or transmit such material.

3. Section 15 sub-section (2) penalizes both the actual transmission, propagation, display or distribution of any child pornography as-well as the facilitation of any of the abovementioned acts. To constitute an offence under Section 15 sub-section (2) apart from the storage or possession of such pornographic material, there must be something more to show i.e., either (I) the actual transmission, propagation, display or distribution of such material OR (II) the facilitation of any transmission, propagation, display or distribution of such material, such as any form of preparation or setup done that would enable that person to transmit it or to display it. The mens rea is to be gathered from the manner in which the pornographic material was found to be stored or in possession and any other material apart from such possession or storage that is indicative of any facilitation or actual transmission, propagation, display or distribution of such material.

4. Section 15 sub-section (3) penalizes the storage or possession of any child pornographic material when done for any commercial purpose. To establish an offence under Section 15 sub-section (3), besides the storage or possession of the pornographic material involving a child, there must be some additional material or attending circumstances that may sufficiently indicate that the said storage or possession was done with the intent to derive any gain or benefit. To constitute an offence under sub-section (3) there is no requirement to establish that such gain or benefit had been actually realized

5. Sub-section(s) (1), (2) and (3) respectively of Section 15 constitute independent and distinct offences. The three offences cannot coexist simultaneously in the same set of facts. They are distinct from each other and are not intertwined. This is because, the underlying distinction between the three sub-sections of Section 15 lies in the varying degree of culpable mens rea that is required under each of the three provisions.

6. The police as well as the courts while examining any matter involving the storage or possession of any child pornography, finds that a particular sub-section of Section 15 is not attracted, then it must not jump to the conclusion that no offence at all is made out under Section 15 of the POCSO. If the offence does not fall within one particular subsection of Section 15, then it must try to ascertain whether the same falls within the other sub-sections or not.

   Any act of viewing, distributing or displaying etc., of any child pornographic material by a person over the internet without any actual or physical possession or storage of such material in any device or in any form or manner would also amount to ‘possession’ in terms of Section 15 of the POCSO, provided the said person exercised an invariable degree of control over such material, by virtue of the doctrine of constructive possession.

7. Any visual depiction of a sexually explicit act which any ordinary person of a prudent mind would reasonably believe to prima facie depict a child or appear to involve a child, would be deemed as ‘child pornography’ and the courts are only required to form a prima facie opinion to arrive at the subjective satisfaction that the material appears to depict a child from the perspective of any ordinary prudent person for any offence under the POCSO that relates to child pornographic material, such as Section 15. Such satisfaction may be arrived at from any authoritative opinion like a forensic science laboratory (FSL) report of such material or opinion of any expert on the material in question, or by the assessment of such material by the courts themselves.

8. Section 67B of the IT Act is a comprehensive provision designed to address and penalize the various electronic forms of exploitation and abuse of children online. It not only punishes the electronic dissemination of child pornographic material, but also the creation, possession, propagation and consumption of such material as-well as the different types of direct and indirect acts of online sexual denigration and exploitation of the vulnerable age of children. Section(s) 67, 67A and 67B respectively of the IT Act being a complete code, ought to be interpreted in a purposive manner that suppresses the mischief and advances the remedy and ensures that the legislative intent of penalizing the various forms of cyber-offences relating to children and the use of obscene / pornographic material through electronic means is not defeated by a narrow construction of these provisions.

9. The statutory presumption of culpable mental state on the part of the accused as envisaged under Section 30 of the POCSO can be made applicable provided the prosecution is able to establish the foundational facts necessary to constitute a particular offence under the POCSO that may have been alleged against the accused. Such presumption can be rebutted by the accused either by discrediting the prosecution’s case or by leading evidence to prove the contrary, beyond a reasonable doubt

10. The foundational facts necessary for the purpose of invoking the statutory presumption of culpable mental state for an offence under Section 15 of POCSO are as follows:-

    (a) For the purpose of sub-section (1), the necessary foundational facts that the prosecution may have to first establish is the storage or possession of any child pornographic material and that the person accused had failed to delete, destroy or report the same.

    (b) In order to invoke the statutory presumption of culpable mental state for an offence under sub-section (2) the prosecution would be required to first establish the storage or possession of any child pornographic material, and also any other fact to indicate either the actual transmission, propagation, display or distribution of any such material or any form of an overt act such as preparation or setup done for the facilitation of the transmission, propagation, display or distribution of such material, whereafter it shall be presumed by the court that the said act was done with the intent of transmitting, displaying, propagating or distributing such material and that the said act(s) had not been done for the purpose of either reporting or for use as evidence.

    (c) For the purpose of sub-section (3) the prosecution must establish the storage or possession of such material and further prove any fact that might indicate that the same had been done to derive some form of gain or benefit or the expectation of some gain or benefit.

11. The statutory presumption of culpable mental under Section 30 of POCSO can be made applicable in a quashing proceeding pertaining to any offence under the POCSO.

Important Suggestions to the Union of India and to the courts

1. The Parliament should seriously consider to bring about an amendment to the POCSO for the purpose of substituting the term “child pornography” that with “child sexual exploitative and abuse material” (CSEAM) with a view to reflect more accurately on the reality of such offences. The Union of India, in the meantime may consider to bring about the suggested amendment to the POCSO by way of an ordinance.

2. The term “child pornography” shall not be used in any judicial order or judgment, and instead the term “child sexual exploitative and abuse material” (CSEAM) should be endorsed.

3. Implementing comprehensive sex education programs 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.

4. Providing support services to the victims and rehabilitation programs for the offenders is essential. These services should include psychological counselling, therapeutic interventions, and educational support to address the underlying issues and promote healthy development. For those already involved in viewing or distributing child pornography, CBT has proven effective in addressing the cognitive distortions that fuel such behaviour. Therapy programs should focus on developing empathy, understanding the harm caused to victims, and altering problematic thought patterns.

5. Raising awareness about the realities of child sexual exploitative material and its consequences through public campaigns can help reduce its prevalence. These campaigns should aim to destigmatize reporting and encourage community vigilance.

6. Identifying at-risk individuals early and implementing intervention strategies for youth with problematic sexual behaviours (PSB) involves several steps and requires a coordinated effort among various stakeholders, including educators, healthcare providers, law enforcement, and child welfare services. Educators, healthcare professionals, and law enforcement officers should be imparted training to identify signs of PSB. Awareness programs can help these professionals recognize early warning signs and understand how to respond appropriately.

7. Schools can also play a crucial role in early identification and intervention. Implementing school-based programs that educate students about healthy relationships, consent, and appropriate behaviour can help prevent PSB.

8. To give meaningful effect to the above suggestions and work out the necessary modalities, the Union of India may consider constituting an Expert Committee tasked with devising a comprehensive program or mechanism for health and sex education, as well as raising awareness about the POCSO among children across the country from an early age, for ensuring a robust and well-informed approach to child protection, education, and sexual well-being.