The Supreme Court on September 23 set aside a contentious Madras High Court ruling that downloading and possessing sexually explicit material involving a minor is not a criminal offence while urging Parliament to issue an ordinance to replace the term “child pornography” with “child sexual exploitative and abuse material (CSEAM)” under all relevant laws. The judgment held that the change in terminology would mark a significant shift in how society and the legal system conceptualise and address the grave issue of child exploitation. The court directed all courts to stop using the term “child pornography” henceforth in their orders and judgments and rather use CSEAM to refer to such offences.
While making it clear that downloading child pornography amounts to an offence, the top court in a detailed verdict has described instances that would qualify as offence under the POCSO and emphasised that mere possession of such content is also an offence under POCSO. The court said that mere storage of “child sexual exploitative and abuse material” (child pornography) without deleting or reporting the same would indicate the intention to transmit, which is an offence under POCSO. The court also said merely watching it without download would amount to an offence of “possession” under the POCSO Act. The court has clarified that not reporting such an incident is also an offence.
The spike in cases of child pornography reflects the grim picture of online child sexual abuse in India. Overall, the number of child pornography crimes in India has grown steadily over the past few years. This is because of the growth of the Internet and the increase in the demand for child porn. Recently, the National Commission for Protection of Child Rights (NCPCR) met representatives from major social media platforms to address issues related to the safety of children online and explore ways to protect them. In a recent meeting with representatives from companies like Google, YouTube, Meta, X, Snapchat, Reddit, Sharechat, and Bumble, the Commission sought to explore ways to protect children from explicit content and online exploitation.
However, the Supreme Court’s decision is a crucial step in safeguarding children from online sexual abuse. Replacing “child pornography” with “child sexual abuse materials” (CSAM) will better reflect the non-consensual nature of the content. This linguistic shift will enhance legal clarity and emphasise the seriousness of the offence. Amendments to the POCSO Act will now be necessary to include possession of CSAM as a separate offence, aligning it with the provisions of the Information Technology Act, 2000. Such changes would address inconsistencies and provide clearer legal guidance in prosecution of the perpetrators. While the POCSO Act provides stricter punishments and procedural safeguards for child victims, the Information Technology Act offers better safeguards in perils of the consumption of CSEM.
