SC ruling on child pornography marks a paradigm shift

The Supreme Court of India’s ruling on Monday on the illegality of viewing or possessing sexually explicit material of minors under the Protection of Children from Sexual Offences (POCSO) Act marks a significant legal and moral shift in the fight against child exploitation. By quashing a controversial order of the Madras High Court and reclassifying “child pornography” as “child sexually exploitative and abusive material” (CSEAM), the top court has not only strengthened legal protections for minors but also set a global precedent in tackling one of the most heinous crimes.

The judgment by Chief Justice of India (CJI) Dhananjaya Y Chandrachud and Justice JB Pardiwala underscores that consuming sexually explicit content involving minors is not just a private vice but a serious crime that fuels a wider cycle of abuse and exploitation. By articulating this principle, the Court has distinguished India on the global stage and placed it among the few countries that recognise and punish passive consumption of such material.

Many countries are struggling to keep pace with the changing nature of child exploitation in the digital age. In the United States, for example, the legal framework criminalizes the possession, viewing and distribution of child abuse material, with severe penalties. However, enforcement is often lacking and the definition of what constitutes illegal material can vary from state to state. While the European Union has issued guidelines on child abuse, enforcement and legal interpretations are uneven across member states. Against this backdrop, the Supreme Court of India’s judgment stands out as a holistic and unambiguous approach to criminalizing all forms of involvement with such exploitative material.

The judgment’s recommendation to replace the term “child pornography” with CSEAM marks a paradigm shift. The term “pornography” often implies consensual adult behavior, which mischaracterizes the non-consensual and offensive nature of content involving minors. By using the term “CSEAM,” the Supreme Court emphasized that such material is a record of abuse and exploitation, not entertainment or consent. This redefinition recognizes the trauma inflicted on child victims, whose rights and dignity are repeatedly violated each time such material is viewed or shared.

The Supreme Court’s call for this change in terminology challenges legal and societal perceptions of such crimes and directs all courts in India to stop using “child pornography” in judicial proceedings and orders. The judgment, written by Justice Pardiwala, emphasises that language matters in drafting laws, influencing public perception and shaping the approach of law enforcement and judicial systems to child exploitation.

The Supreme Court decision also addresses crucial legal loopholes. By making it clear that even viewing CSEAM online without physically downloading it is “constructive possession”, the ruling ensures that offenders cannot get away on technical grounds. This broad interpretation of the POCSO Act and the Information Technology Act plugs significant loopholes in existing laws, and reinforces the notion that any involvement with such material, whether actively or passively, is a criminal act.

The judgment further outlines three separate offences under Section 15 of the POCSO Act: failing to remove or report CSEAM intended for sharing, actually sharing or preparing to share such material, and storing or possessing it for commercial gain. This detailed breakdown creates a robust legal framework that covers every aspect of the crime, making it difficult for perpetrators to exploit ambiguities in the law.

The most progressive aspect of the judgment is the emphasis on promoting sex education and reforming legislative frameworks. The Court’s call on the Union government to actively promote positive, age-appropriate sex education is a crucial step in preventing the spread of CSEAM. The Court emphasised that sex education should not be seen as a taboo subject, but as an essential tool to provide children and young adults with the knowledge to make informed choices about their sexual health and behaviour.

This recommendation is in line with global best practices. Countries such as the Netherlands, which have comprehensive sexuality education programs that begin at an early age, have reported lower rates of sexual violence and abuse. Research has shown that well-structured sexuality education can delay the onset of sexual activity among young people and promote healthier attitudes toward relationships. By advocating for similar educational reforms, the Court has set a path that not only addresses the direct legal aspects of child exploitation, but also the root causes of such behavior.

The Supreme Court’s ruling is more than a legal guideline — it is a call to action for society as a whole. The Court’s recommendations for psychological counseling, therapeutic interventions, and increased public awareness reflect the realization that legal measures alone are not enough. A multifaceted approach involving educators, health care providers, law enforcement, and child welfare agencies is necessary to effectively combat the scourge of child exploitation.

Furthermore, the Court laid the foundation for a coordinated national response by proposing the establishment of an expert committee to develop comprehensive health and sexuality education programmes and raise awareness about POCSO. Such an approach recognises that combating child exploitation requires not only punitive measures but also preventive strategies and support systems for victims.

The verdict marks a transformative step in redefining the legal landscape around child sexual exploitation, and sets a global benchmark in the fight against these heinous crimes. By criminalizing passive consumption of CSEAM, promoting education and pushing for legislative changes, the Supreme Court has laid the foundation for a robust framework of accountability and protection. The proactive role of the judiciary indicates a strong commitment to closing legal loopholes and ensuring speedy justice. However, this mission cannot be accomplished by the courts alone. The Union and State Governments, along with civil society, must also play a significant role in protecting children, restoring their dignity and translating these legal principles into concrete actions that uphold justice and prevent further victimization.

The opinions expressed are personal