Sep 23, 2024 11:17 AM IST
The court set aside a contentious Madras high court ruling that downloading and possessing sexually explicit material involving a minor is not a criminal offence
The Supreme Court on Monday 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.
A bench comprising Chief Justice of India Dhananjaya Y Chandrachud and Justice JB Pardiwala underscored the grave concerns surrounding child pornography, highlighting the delicate balance between technological realities and the legal protections for children. 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.
In a detailed judgment, the bench rendered extensive interpretation of the relevant provisions of the Protection of Children from Sexual Offences (POCSO) Act relating to exploitative material against children when it suggested Parliament should replace the term “child pornography” with CSEAM so as to bring about a transformative impact on legal frameworks, public perception and the overall fight against child abuse.
The bench on April 19 reserved its verdict in the matter, saying it must answer crucial questions about the interpretation of laws intended to safeguard children from exploitation in the digital age.
The case stemmed from a January 2024 decision by Justice N Anand Venkatesh of the Madras high court, which quashed criminal charges against a 28-year-old man accused of downloading and watching pornographic content involving children.
Justice Venkatesh ruled that merely watching child pornography does not amount to an offense under the POCSO Act or the Information Technology Act, 2000. According to the judge, 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 does not meet the legal threshold of criminal conduct.
The high court reasoned that Section 67-B of the Information Technology Act, which punishes the publishing, transmitting or creating of material depicting children in sexually explicit acts, does not extend to mere possession or viewing. Justice Venkatesh held that the accused in the present case neither published nor transmitted the content, and therefore, his actions, while morally reprehensible, did not constitute an offence. “Since he has not used a child or children for pornographic purposes, at best, it can only be construed as a moral decay on the part of the accused person,” the judge said.
This interpretation of the law provoked a strong reaction from the Supreme Court. During an earlier hearing in March, the bench criticised the high court ruling as “atrocious,” as it questioned the legal soundness of the impugned judgment. “How can a single judge say this? This is atrocious,” said the bench, agreeing to examine the correctness of the high court judgment.
While deliberating on the arguments in April, the Supreme Court noted the complexity of defining criminal liability in cases involving digital content. It observed that while the act of a child watching porn may not directly constitute an offense, the creation and distribution of child pornography represent a severe breach of legal and ethical standards.
The court underscored the need to address the possession of such material with seriousness, as it perpetuates a market that exploits vulnerable children.
It acknowledged the broader implications of the judgment for child protection laws in India as it admitted the appeal filed jointly by NGOs Just Rights for Children Alliance and Bachpan Bachao Andolan.
Senior advocate HS Phoolka, representing the NGOs, argued that the high court ruling undermined the protective intent of the POCSO Act and the IT Act. Phoolka emphasised that the very nature of child pornography involves the exploitation of minors, making any interaction with such content a violation of the law’s spirit and intent. He said that the high court’s decision erroneously suggested that mere possession was not criminal, thereby sending a dangerous message that could embolden offenders.
Senior advocate Swarupama Chaturvedi appeared for the National Commission for Protection of Child Rights (NCPCR) in the matter, opposing the rationale of the judgment. Allowing the appeal against the judgment, the Supreme Court revived the criminal prosecution in the case.
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