Replace 'child pornography' with 'child sexual exploitation and abuse material': SC | Latest News from India

A bench comprising Chief Justice of India Dhananjaya Y Chandrachud and Justice JB Pardiwala underlined the serious concerns related to child pornography and stressed the delicate balance between technological realities and legal protection of children. The court directed all courts to refrain from using the term “child pornography” in their orders and judgments in future and instead use CSEAM to refer to such offences.

In a detailed judgment, the court gave a comprehensive interpretation of the relevant provisions of the Protection of Children from Sexual Offences (POCSO) Act relating to exploitative material against children, suggesting to Parliament that the term ‘child pornography’ be replaced with CSEAM to have a transformative impact on the legal framework, public perception and the overall fight against child abuse.

The court reserved its judgment on the case on April 19, saying it needed to answer crucial questions about the interpretation of laws designed to protect children from exploitation in the digital age.

The case stems from a January 2024 decision by Justice N. Anand Venkatesh of the Madras High Court dismissing charges against a 28-year-old man accused of downloading and viewing pornographic content featuring children.

Justice Venkatesh ruled that merely viewing child pornography does not constitute an offence under the POCSO Act or the Information Technology Act 2000. According to the judge, a child or children must have been abused for pornographic purposes to incur charges under the POCSO Act, meaning passive consumption without direct involvement does not meet the legal threshold of criminal conduct.

The top court argued that Section 67-B of the Information Technology Act, which penalises publication, transmission or creation of material depicting children engaged in sexually explicit acts, cannot be extended to mere possession or mere viewing. Justice Venkatesh ruled that in the instant case, the accused neither published nor transmitted the content and hence his actions, though morally reprehensible, did not amount to an offence. “Since he did not use any child or children for pornographic purposes, this can at best be construed as moral turpitude on the part of the accused,” the judge said.

This interpretation of the law provoked a strong reaction from the Supreme Court. During an earlier hearing in March, the court criticised the Supreme Court's verdict as “abhorrent” as it questioned the legal validity of the impugned judgment. “How can a single judge say such a thing? This is abhorrent,” the court said, agreeing to examine the correctness of the Supreme Court's verdict.

When considering arguments in April, the Supreme Court noted the complexity of defining criminal liability in cases involving digital content, noting that while a child watching pornography is not directly a crime, the creation and distribution of child pornography is a serious violation of legal and ethical standards.

The court stressed that the possession of such material must be seriously addressed as it creates a market that exploits vulnerable children.

It recognised the far-reaching implications of the judgment for child protection laws in India when it allowed the appeal filed jointly by the non-governmental organisations Just Rights for Children Alliance and Bachpan Bachao Andolan.

Senior advocate HS Phoolka, representing the NGOs, argued that the Supreme Court's verdict undermines the protective purpose of the POCSO Act and the IT Act. Phoolka stressed that child pornography at its very nature involves exploitation of minors, so any interaction with such content is a violation of the spirit and purpose of the law. He said the Supreme Court's decision wrongly suggests that mere possession is not punishable, thereby sending a dangerous message that could encourage perpetrators.

Senior advocate Swarupama Chaturvedi, representing the National Commission for Protection of Child Rights (NCPCR) in the case, challenged the judgment. The Supreme Court allowed the appeal against the judgment and resumed prosecution in the case.