For the judgment to really move the needle on CSEAM, a lot will depend on the implementation.
The Supreme Court judgment on Monday on sexual exploitation of minors signals a necessary broadening of the conversation. In a landmark ruling, it said that viewing, possession and storage of sexually explicit materials involving minors constitute a crime under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act, whether or not it is shared or transmitted further. The ruling overrides a January order by the Madras High Court that had held that “mere possession” or storage of child pornography was not an offence under Section 67-B of the IT Act. But this expansion of the ambit of legal action against such exploitation also raises a question about guard rails, and about whether harsher laws are better deterrents. Does this view of the law, that equates possession with criminal intent, place the burden of proof on the accused? This raises concerns at a time when the state has been known to weaponise laws and curb freedoms, especially of the voiceless and vulnerable.
The apex court rightly says 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 victimisation and exploitation of the child do 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”. But this approach, while empathetic to victims, may not keep enough room for kinds of adolescent behaviour which require sensitive handling, not criminalisation, including online exploration of sexuality. The ruling also sidesteps the question of regulation of what it recommends be referred to as “child sexual exploitative and abuse material” (CSEAM) instead of “child pornography”, and it does not recognise the possibilities of rehabilitation or the necessity of the infrastructure that is required for it. Its emphasis on mandatory reporting downplays the risk of facing apathy, victim blaming and harassment by the police.
For the judgment to really move the needle on CSEAM, a lot will depend on the implementation. As it rightly points out, awareness about consent and its limits needs to be built through sex education, in schools, colleges and at home and through access to counselling and therapy. Another important aspect remains the sensitisation of police forces to deal with such complaints, with compassion, following due process. The SC judgment has its heart in the right place, but it is imperative to ensure that its stringency is not misused to penalise rather than to protect.
