The Supreme Court will crack down on child pornography

The Supreme Court’s emphatic and welcome ruling that child pornography is illegal even if viewed privately, even if stored on a mobile or electronic device without being forwarded, is a stark and welcome position that removes any ambiguity in the law.

In fact, two judges DY Chandrachud and JB Pardiwala urged the government to change the legal definition of child pornography as the word implies a degree of consent. They want it replaced with “child sexual exploitation and abuse material” or CSEAM.

Justice Pardiwala’s landmark ruling advocates promoting positive sex education to create better awareness about sexual crimes involving minors, and calls for a compassionate approach to the victims of violence.

The ruling, writes Hindustan Times national legal editor Utkarsh Anand, “marks a significant legal and moral change in the fight against child exploitation.” The apex court has “not only strengthened legal protections for minors, but also set a global precedent in tackling one of the most heinous crimes.”

(Read Utkarsh Anand’s column here)

The challenge

The apex court was hearing a challenge to a January decision of the Madras High Court quashing criminal proceedings in a fast-track sessions court.

In 2020, police had discovered two files of sexually explicit material involving underage boys on the mobile phone of a 24-year-old man. A case was filed against him under the Information Technology (IT) Act and POCSO.

The now 28-year-old contested the criminal proceedings, telling the High Court that although he was “addicted” to watching pornography as a teenager, he had never viewed sexually explicit material involving minors. He also hadn’t tried to publish the files or send them to other people. He had only downloaded the files onto his phone and viewed them in his private space.

The single judge agreed that no criminal case had been made and that he was only guilty of ‘moral lapse’.

The verdict was challenged by an alliance of five different NGOs working together under the name Just Rights for Children. Advocate HS Phoolka, appearing for the alliance, argued that the Madras High Court committed a “grave error” that endangered the welfare of children.

(Read the Supreme Court judgment here)

Sex education to combat a growing plague

Nine in ten boys and six in ten girls are exposed to some form of pornography before the age of 18. On average, a boy comes into contact with porn for the first time at the age of 12, according to the judgment of the Madras High Court.

The Supreme Court calls sexual exploitation of children one of the most heinous crimes that “begins with the sexual act, continues until its recording, and continues as photos and videos floating through cyberspace, freely accessible to anyone who can surf the Internet. ”

According to the US-based National Center for Missing and Exploited Children, India is responsible for the most online images of child sexual abuse. Technology has certainly made it easier to produce and distribute such images. A 2019 New York Times investigation found that tech companies had reported more than 45 million online photos and videos of children being sexually abused — more than double what they found the year before.

Given the proliferation and exponential rise of exploitative sexual material for children, the Supreme Court’s recommendation on sex education is welcome. In the past, ‘sex education’ has been a red flag, with politicians huffing and puffing that the concept is ‘foreign’ to Indian culture.

Concerns have also been raised that sex education could promote promiscuity. In fact, research shows that the opposite is true: Young people with access to sex education are more likely to delay sexual activity and less likely to engage in risky sexual behavior, says sexuality educator and author Leeza Mangaldas.

Age-appropriate sex education should start with the education itself, Mangaldas tells me on the phone. But: “We don’t even teach children the right word for anatomy. We teach them to identify eyes, lips and arms, but when it comes to genitals we use words like ‘shame-shame’. So, what message are you sending to children?”

Sex education, she continues, “is central to positive and healthy relationships, and to a safer and more equitable gender landscape. I’ve been saying this for years and now the Supreme Court is fighting for comprehensive sex education. I can only hope that we will see real change.”

If you see sexually explicit images or videos of minors on the Internet, you can report it to cybercrime.gov.in or about 1930.

The following article is an excerpt from this week’s HT Mind the Gap. Subscribe here.