Don’t use the term ‘child pornography’, replace it with CSEAM, SC advises parliament to amend POCSO Act

The Supreme Court on Monday ruled that viewing and storing child pornographic material on digital devices can constitute an offence under the Protection of Children from Sexual Offences (POCSO) Act, 2012, if the person involved had the intention to derive some benefit from it. The Supreme Court suggested that Parliament “seriously consider” amending the POCSO Act by replacing the word ‘child pornography’ with ‘child exploitation and abuse material’ (CSEAM) so that it would more accurately reflect the reality of such offences.

A bench comprising Chief Justice DY Chandrachud and Justice JB Pardiwala urged Parliament to “seriously consider” amending the POCSO Act. In a ruling today, they said that in the meantime, the central government “may consider implementing the proposed amendment to the POCSO through an ordinance.”

After stressing the need and urgency of amending the POCSO Act and promulgating an ordinance in the meantime, the Supreme Court today banned all courts in the country from using the term ‘child pornography’ and instead used ‘child sexually exploitative and abusive material’ (CSEAM).

“We further prohibit the courts from using the term “child pornography” and instead the term “child sexually exploitative and abusive material” (CSEAM) must be used in judicial orders and judgments of all courts in the country,” the ruling said in a direction with far-reaching implications.

“We have reminded the courts that the term ‘child pornography’ should not be used in a court order or judgment, and that instead the term ‘child sexually exploitative and abuse material’ (CSEAM) should be endorsed,” according to one of the guidelines issued today.

Speaking on behalf of the court, Justice Paridiwala said: “It must also be realised that the term ‘child pornography’ is a misnomer which does not capture the full extent of the crime. It is important to recognise that every instance of what is traditionally called ‘child pornography’ actually involves the abuse of a child.”

Further stating that the use of the term “child pornography” may “lead to a trivialisation of the crime, as pornography is often seen as a consensual act between adults”, Justice Pardiwala, delivering the verdict, said: “The term “child sexually exploitative and abusive material” (CSEAM) rightly places emphasis on the exploitation and abuse of the child, and emphasises the criminal nature of the act and the need for a serious and robust response.”

In a series of suggestions to both Parliament and the Central government, the Supreme Court in its judgment today favoured provision of “comprehensive sex education programmes containing information on the legal and ethical implications of child pornography, which can help deter potential offenders” and suggested “setting up an expert committee tasked with devising a comprehensive programme or mechanism for health and sex education, as well as raising awareness about POCSO among children across the country from an early age, to ensure a robust and informed approach to child protection, education and sexual well-being.”

It was said that schools can also play a crucial role in early identification and intervention. Implementing school programs that teach students about healthy relationships, consent, and appropriate behavior can help prevent problematic sexual behavior (PSB).

The top court’s verdict came on petitions filed by NGOs Just Rights for Children Alliance and Bachpan Bachao Andolan challenging the January 11, 2024, judgment of the Madras High Court, which had held that mere possession or storage of pornographic material is not an offence under POCSO. The High Court had further held that mere viewing or downloading of child pornography in private domain is not punishable under the same.

The Just Rights for Children Alliance – a coalition of five different NGOs – works together against child trafficking, sexual exploitation and other related issues. The Bachpan Bachao Andolan is a children’s rights organization that works to protect children from exploitation.

The bone of contention was whether mere viewing, possession or storage of child pornographic material is punishable under POCSO? The other issues were the scope of Section 15 of the POCSO Act and the actual scope of Section 67B of the Information Technology Act.