The Supreme Court ruled that viewing or possessing child sexual exploitative material is illegal, urging the Government to promote sex education and redefine related laws.
A three Judges Bench headed by Chief Justice of India D.Y. Chandrachud held on Monday (September 23) stated that viewing in private, downloading, storing, possessing, distributing or displaying pornographic acts involving children attract criminal liability under the POCSO and IT Act.
Apex Court overturned a controversial order of Madras High Court
Through this ruling the Apex Court overturned a controversial Madras High Court order and urged the Union Government to promote sex education in the country and to change the legal definition of “Child Pornography” to “Child Sexual Exploitative and Abuse Material (CSEAM)” to reflect the true gravity of such crimes. Justice Pardi Wala said the description of the act as CSEAM would more accurately reflect the reality that these images and videos were not merely pornographic but were records of incidents during which children were sexually exploited and abused. The term ‘Child Pornography’ a misnomer which failed to capture the full extent and horror of the crime. “Each case of what is traditionally termed ‘Child Pornography’ involves the actual abuse of child. The word ‘pornography’ is seen as a consensual act between adults. Thus, use of this term in respect of a child can lead to a trivialization of the crime,” the verdict pointed out.
Child Sexual Exploitation is one of the most heinous crimes
The Bench further said that “Child sexual exploitation is one of the most heinous crimes imaginable, and the offence of child pornography is equally as heinous, if not more, as in the latter the victimization and exploitation of the child does not end with the initial act of abuse. It in essence turns the singular incident of abuse into a ripple of trauma inducing acts where the rights and dignity of the child is continuously violated each time such material is viewed or shared”.
“It continues through its recording, and perpetuated as photographs and videos that float through cyberspace, freely accessible to anyone who has ability to surf the internet… the knowledge that their abuse is being watched by countless strangers, sometimes years after the actual event, exacerbates those psychological wounds on top of the trauma that was already induced by the act in the first place. This perpetuating violation deprives the victim of any remaining hope or chance to heal, recover from the abuse and find closure,” Justice J.B. Pardi Wala, who authored the 200-page judgment termed as groundbreaking by the Chief Justice, observed.
Let’s know the Madras High Court’s controversial Decision
The bench held that there is no difference between a CSEAM and the actual act of child sexual abuse, as both of them share a ‘common intention, malevolent intent. The verdict can be seen because of an appeal filed by NGO, Just Right for Children Alliance and Bachpan Bachao Andolan, against a Madras High Court decision, which held in January that passive possession or storage of child pornographic material was not an offence under the POCSO Act. According to the High Court, a child or children must have been used for pornography purposes to attract charges under the POCSO Act, implying that passive consumption without direct involvement would not constitute a crime. Justice Pardiwala asked while contradicting Madras High Court’s controversial statement that why the High Court had issued considering section 15 of the POCSO Act, which criminalizes storage, possession and transmission of child pornographic material.
The Bench also mentioned section 67B of the Information Technology Act, 2000 along with the POCSO Act and stated that the section not only penalized the use, transmission and publication of obscene materials, including child pornography, but made browsing, creation, collection, online facilitation or enactment of children into any sexual act or conduct an offence.
To make the liability of offenders, the Apex Court evolved the principle of ‘constructive possession’. According to this, a person was accountable if at any point of time he had an invariable degree of power and knowledge to control, manipulate, alter, modify or destroy the material.
Sex Education in India
The judgment highlighted the significant misconceptions surrounding sex education in India, which contribute to its inadequate implementation. Many parents and educators harbor conservative views, seeing discussions about sexual health as inappropriate or embarrassing, lamented the bench, adding this societal stigma creates a reluctance to address sexual health openly. It further highlighted evidence showing that comprehensive sex education delays the onset of sexual activity and promotes safer practices among those who are sexually active.
The court highlighted the statutory obligations under section 43 and 44 of the POCSO Act, which mandate the Central and State Governments, as well as the NCPCR to ensure widespread awareness of the Act through media and to provide training to government officials, including police officers, for its effective implementation. It emphasized and included the provision of sex education and awareness programs in school and other educational settings.
Suggestions to the Centre
The judgment gave detailed suggestions to the Central Government such as –
- Parliament should amend the POCSO Act to replace the term “child pornography” with “Child Sexual Exploitative and Abuse Material (CSEAM).
- There is need for psychological counselling, therapeutic interventions and educational support for victims to help them heal and reintegrate into society.
- Raising awareness about the realities of CSEAM and its devastating impact is crucial for reducing its prevalence.
- Cordial effort among educators, health care providers, law enforcement and child welfare service to identify individuals with problematic sexual behaviors early and implement intervention strategies.
- Court also suggested to form an expert committee to implement these suggestions.
Bhuwan Ribhu, petitioner and founder of Just Right for Children Alliance, applauded the Apex Court for paving the way globally in establishing a framework to protect exploitation of children.
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