Historic ruling on child pornography

The recent Supreme Court ruling that mere possession of child pornography is an offence under the POCSO Act and the IT Act marks a significant step forward in the fight against child sexual exploitation in India. In a society grappling with the grim reality of child abuse and exploitation, this ruling not only overturns a controversial judgment of the Madras High Court but also serves as a strong deterrent to would-be offenders.
Earlier this year, the Madras High Court quashed the criminal case against a man who was caught with child pornography content on his phone, arguing that mere possession of it did not constitute an offence under the POCSO or IT Acts. This decision was deeply problematic as it created a loophole through which individuals could avoid liability by simply not distributing the illegal material. The High Court’s interpretation failed to grasp the gravity of child sex crimes, and focused solely on the act of transmission rather than the deeper problem of possession itself. The SC’s decision to quash this judgment corrects a serious omission. As the Chief Justice rightly noted, child sexual exploitation is a widespread problem that must be addressed with zero tolerance. This judgment recognises the mere possession of such content as part of the larger problem of child exploitation. Child pornography is not just an isolated, private crime, but contributes to a global network of abuse, where victims – often vulnerable children – are violated again and again through the distribution and consumption of exploitative materials.
The Supreme Court’s interpretation of Section 15 of the POCSO Act is of particular relevance in this case, as Section 15 deals with offences relating to child pornography, including storage and possession of such material. The Court has outlined three specific offences under this section: failure to remove or report child pornography material; sending, distributing or exhibiting child pornography; and storing child pornography material for commercial gain. Through these distinctions, the Supreme Court has created a comprehensive legal framework to deal with possession and distribution of child pornography material, treating them as offences of varying degrees depending on the intention and actions of the offender.
A key aspect of the court’s ruling is the call for legislative reform. The court recommended that Parliament amend the POCSO Act to replace the term “child pornography” with “child sexually exploitative and abuse material” (CSEAM), as this terminology more accurately reflects the heinous nature of these crimes. The court’s suggestion is in line with global trends where child exploitation laws increasingly focus on the victimisation and abuse inherent in such material. Changing the terminology would also help courts and law enforcement agencies to treat child sexual exploitation with the seriousness it deserves.
A key element in criminal law is the concept of mens rea, or criminal intent, which the Court has addressed in detail. Under the POCSO Act, the intent to transmit or share child pornography can be inferred from the circumstances in which such material is stored or possessed. This approach strengthens the ability of the prosecution to hold offenders to account even in cases where transmission has not yet taken place but the circumstances indicate possible distribution. By addressing both actus reus (the actual act of possessing or storing) and mens rea (the intent behind it), the Court has provided a nuanced legal understanding that focuses as much on prevention as it does on prosecution. It recognises that possession of such material is not a victimless crime and that failure to address its existence indirectly perpetuates the exploitation of children.
The Supreme Court’s ruling serves as a reminder that tackling child sexual exploitation requires a multifaceted approach, one that includes not only strict legal provisions but also societal awareness and international cooperation. As technology advances and the internet becomes more ubiquitous, the opportunities for disseminating child exploitation material increase. Therefore, India’s legal system must keep pace with these developments to effectively combat such crimes.