Supreme Court’s landmark verdict on Child Pornography

Introduction

In a recent landmark judgment concerning child rights, POCSO Act, IT Act and the Bharatiya Nyaya Sanhita 2023, a 2 – judge bench of the Hon’ble Supreme Court consisting of Hon’ble Justices D.Y Chandrachud and J.B Pardiwala held that any kind of usage of child pornography including storage or viewing is a punishable offence and attracts penal consequences under Section 15 of the POCSO Act along with Section 67B of the Information Technology Act 2000.

Supreme Court’s analysis of laws prohibiting child pornography

According to the Hon’ble Supreme Court’s view, the term ‘child pornography’ is a misnomer which fails to capture the gravity and extent of the crime and leads to trivialisation of this heinous crime which may imply consensus sexual activity between two individuals wherein one may be a minor. Therefore in order to award due gravity and importance to this unacceptable and illegal activity, the Hon’ble Court has also coined the term “Child Sexually Exploitative and Abuse Material” or CSEAM which actively reflect that the content in form of images or sexually explicit videos is not the result of any consensual act between two or more individuals but is a result of exploitation with the children in an illegal manner. Keeping in mind the heinous and exploitative nature of such pornographic content, the Hon’ble Court has also directed the courts across jurisdictions to use the term “Child Sexually Exploitative and Abuse Material” instead of child pornography in judicial orders and judgments post the pronouncement of the present judgment.

Obligation of Reporting Sexual Offences

According to the court, it was noted that numerous social media intermediaries fail to report cases of child sexual abuse to the local authorities specified under various statutes by the legislature which leads to increase in instances of such unfortunate cases in the country. Therefore, the Court has directed various governments to ensure that mandatory adherence to Sections 19 and 20 of the POCSO Act which pertain to reporting of child sexual abuse cases to the concerned authorities along with Rule 11 of the POCSO Rules in absence of which social media intermediaries would not be eligible to claim exemption from liability for the third party acts since the due diligence has not been adequately conducted on their part.

Social media intermediaries shall also be required to conduct due diligence which shall involve immediate removal of content which pertains to minors and is sexually exploitative in nature as soon as it comes in the knowledge of the intermediary along with immediately reporting about the third party owner/provider of such content to the concerned departments and authorities including police.

Suggestions by the Bench to Union of India and Judicial Authorities

Keeping in mind various observations made by the bench, numerous suggestions and directions were issued to various stakeholding authorities which are as follows:

1. The Parliament and legislature should consider amending the POCSO Act in order to substitute the term “child pornography” with CSEAM in order to reflect a serious approach towards the reality of such offences along with prohibiting the usage of the former term in any notification, judicial order or communication.
2. State should lay adequate emphasis upon providing ‘sex – education’ through various programs including various legal and social ramifications of child pornography which would also deter future offenders. The objective of such programs should be towards clearing common misconceptions about sexual practices and sensitization towards consent and impacts of sexual exploitation. Schools play an important role in shaping the minds of young adults and adolescents and therefore the emphasis on generating awareness about such practices should be taken adequately.
3. Adequate support services should be provided to the victims of such unfortunate instances along with psychological treatment, therapeutic interventions, educational support and societal rehabilitation in order to address the underlying concerns of such individuals. Additionally, the offenders should also be provided with psychological support, counseling and other necessary services for altering the problematic and delinquent thought patterns.
4. In order to give a meaningful impact to these suggestions, the Union of India may consider constitution of an expert committee which shall be tasked with devising an appropriate and comprehensive program or mechanism for health and sex education along with raising awareness about POCSO among children from their formative years and ensuring a robust and well – developed program for child protection and sexual well – being.

Conclusion

One of the most phenomenal aspect pertaining to POCSO and IT Act which remained a gray area in the Indian jurisprudence was whether the mere storage or viewing of sexually explicit content pertaining to children an offence or not has been cleared by the Hon’ble Supreme Court by laying down the jurisprudence that such acts form an inchoate offence punishable under Section 15 of the POCSO Act which penalizes the act of storage or possession of sexually abusive content done with specific intent without necessarily requiring any dissemination or publication.

Secondly, the judgment is also an effective eye opener for the investigating agencies since it lays down that merely when the alleged offence does not fall within the ambit of Section 15 of the POCSO Act does not mean that no offence has been made out and it is the duty of the authorities to ascertain the possibilities of its commission. Any act of viewing, displaying or disseminating such content also falls within the ambit of ‘possession’ and therefore should be charged under Section 15 of the Act.

The Judgment is an effective eye – opener for all the concerned stakeholders of the criminal justice system of the country since it adequately raises the importance of protecting the rights of children against the adversities of child pornography and provides numerous guidelines for the authorities as well as the legislature for strengthening the legal prohibition laid upon such pornographic content. Last but not the least, the judgment has expanded the scope of offences against children which is also an effective measure towards prosecuting the offenders and prohibiting dissemination along with viewing of such illegal content and securing the rights of children in a much broader and effective manner as required by the society.

The entire copy of the judgment can be accessed here.

King Stubb & Kasiva,
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