SC order on child porn marks a paradigm shift

The ruling by Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice JB Pardiwala underscores that the act of consuming sexually explicit content involving minors is not merely a private vice but a serious crime that fuels a broader cycle of abuse and exploitation. In articulating this principle, the Court has set India apart on the global stage, placing it among the few countries that recognise and penalise the passive consumption of such material.

Many nations struggle to keep up with the evolving nature of child exploitation in the digital age. For instance, in the United States, the legal framework criminalises the possession, viewing and distribution of child sexual abuse material, with strict penalties. However, enforcement often falls short and the definition of what constitutes illegal material can vary by state. While the European Union has set directives on child sexual exploitation, enforcement and legal interpretations are uneven across the member countries. Against this backdrop, India’s Supreme Court judgment stands out as a holistic and unequivocal approach to criminalising all forms of engagement with such exploitative material.

The judgment’s recommendation to replace the term “child pornography” with CSEAM marks a paradigm shift. The term “pornography” often implies consensual adult behaviour, which mischaracterises the non-consensual and abusive nature of content involving minors. By adopting the term “CSEAM”, the apex court has emphasised that this material is a record of abuse and exploitation, not entertainment or consent. This redefinition recognises the trauma inflicted on child victims, whose rights and dignity are repeatedly violated each time such material is viewed or shared.

The apex court’s call for this terminology change challenges the legal and societal perceptions of such crimes, directing all courts in India to stop using “child pornography” in judicial proceedings and orders. The judgment, penned by justice Pardiwala, insists that language matters in framing laws, influencing public perception and shaping the approach of law enforcement and judiciary systems towards child exploitation.

The Supreme Court’s decision also addresses crucial legal loopholes. As it clarified that even the act of viewing CSEAM online without physically downloading it constitutes “constructive possession,” the ruling ensures that offenders cannot escape on technical grounds. This expansive interpretation of the POCSO Act and the Information Technology Act closes significant gaps in existing laws, reinforcing the idea that any engagement with such material, whether active or passive, is a criminal act.

The judgment further delineates three separate offences under Section 15 of the POCSO Act — failing to delete or report CSEAM intended for sharing, actually sharing or preparing to share such material, and storing or possessing it for commercial gain. This granular breakdown ensures a robust legal framework that covers every aspect of the crime, making it difficult for perpetrators to exploit ambiguities in the law.

The most forward-looking aspect of the judgment is its emphasis on promoting sex education and reforming legislative frameworks. The Court’s call to the Union government to actively promote positive, age-appropriate sex education is a crucial step in preventing the proliferation of CSEAM. The Court highlighted that sex education should not be seen as a taboo but as an essential tool for equipping children and young adults with the knowledge to make informed choices about their sexual health and behaviours.

This recommendation aligns with global best practices. Countries like the Netherlands, which have comprehensive sex education programmes starting at an early age, have reported lower rates of sexual violence and abuse. Research has shown that well-structured sex education can delay the onset of sexual activity among youth and foster healthier attitudes toward relationships. By advocating for similar educational reforms, the Court has set a path that not only addresses the immediate legal aspects of child exploitation but also targets the root causes of such behaviour.

The Supreme Court’s judgment is more than a legal directive — it is a call to action for society as a whole. The Court’s recommendations for psychological counselling, therapeutic interventions and increased public awareness reflect an understanding that legal measures alone are insufficient. A multi-faceted approach involving educators, health care providers, law enforcement and child welfare services is necessary to combat the scourge of child exploitation effectively.

Moreover, the Court has laid the groundwork for a coordinated national response by proposing the formation of an expert committee to develop comprehensive health and sex education programmes and raise awareness about POCSO. Such an approach recognises that combating child exploitation requires not only punitive measures but also preventive strategies and support systems for victims.

The judgment marks a transformative step in redefining the legal landscape surrounding child sexual exploitation, setting a global benchmark in the fight against these heinous crimes. By criminalising the passive consumption of CSEAM, promoting education and pushing for legislative reforms, the Supreme Court has laid the groundwork for a robust framework of accountability and protection. The judiciary’s proactive role signals a strong commitment to closing legal loopholes and ensuring swift justice. However, this mission cannot be fulfilled by the courts alone. The Union and state governments, along with civil society, must also shoulder a major role in safeguarding children, restoring their dignity, and translating these legal principles into concrete actions that uphold justice and prevent further victimisation.

The views expressed are personal