The Supreme Court’s recent ruling penalising the possession and storage of Child Sexual Exploitation and Abuse Material (CSEAM) sought to clarify the discrepancies in how various high courts had interpreted the issue. Most notably, it overturned a contentious Madras High Court decision from earlier this year, which quashed criminal proceedings against a 28-year-old man who had downloaded two child pornographic videos on his phone. The Madras High Court had previously held that “mere possession” of such material did not violate the law unless the individual had actively “used a child or children for pornographic purposes.” The Supreme Court’s ruling dismissed this interpretation and adopted a broader reading of the relevant legal provisions.
At the heart of the ruling is the issue of possession, which the Court conclusively equates with criminal liability. The judges concluded that not only physical possession but also “constructive possession”— meaning the power to control the material, combined with knowledge of that control — would fall under Section 15 of the Protection of Children from Sexual Offences (POCSO) Act, even if the person did not actively produce or distribute the content.
On the surface, this seems cut and dry. But on closer inspection, the judgment does what all laws on sexual violence are often pressed to do these days: It becomes severe without fully considering the implications especially on those its trying to protect. The rationale provided is built on broad, populist, techno-alarmist stereotypes. As with many stereotypes, some fig leaves of truth obscure the gaping void where nuance and credibility ought to be. This judgment, in its reductive approach, may ultimately fall short of delivering meaningful change for victims of CSEAM.
The most glaring oversight is the Court’s failure to account for adolescent behaviour in the digital age. Teenagers today are increasingly exploring their identities and sexualities online, often sharing intimate images in consensual exchanges. The sharing of intimate imagery has become a common part of relationship-building for everyone and this includes adolescents. Yet, the Court’s decision makes no distinction between consensual sexting between minors and exploitative content. By lumping all forms of image-sharing under the same category, the judgment risks criminalising typical teenage behaviour.
In September 2023, a report on “Age Of Consent Under The Protection Of Children from Sexual Offences Act, 2012” released by the Law Commission of India had already recommended that consensual exchanges of intimate material among children should be handled sensitively and not criminalised. Even the Chief Justice of India had made public statements supporting a nuanced approach to age of consent. Cases criminalising “consensual” adolescent love have noticeably burdened and choked POCSO systems to the point where serious cases became difficult to prioritise. But as typically happens when “technology” becomes a factor, this ruling fails to connect those dots.
The judgment’s bombastic exhortation — claiming courts should show “no leniency” in matters of creating or transmitting CSEAM — rings hollow and harmful when applied to minors. Such rhetoric overlooks the developmental and emotional complexities of adolescence and could have far-reaching, detrimental effects on young people.
The judgment also generalises the impact of CSEAM on victims, asserting that being depicted in such material leaves children scarred for life. While it is undeniable that CSEAM can have devastating effects, the Court’s blanket portrayal of all children as equally vulnerable fails to capture the diverse realities of abuse. Children’s experiences of trauma vary based on the severity of the incident, access to quality support, family dynamics, and psychological resilience. Not every child whose private content is leaked is irreparably damaged; many find ways to cope and heal, and not all experiences result in “lingering impacts”. Such categorisations and terminologies do disservice to the courage and tenacity of countless victims and survivors.
Similarly, the judgment takes a reductive view of those who consume CSEAM, assuming that all viewers have a “desire” to commit further abuse and that viewing such content “can desensitise individuals to the horrors of child abuse, leading them to seekout more extreme forms of exploitation or even to commit acts of abuse themselves.” This “monkey see, monkey do” assumption oversimplifies human behaviour and intent. The judgment later introduces the notion of fixing young people sliding into CSEAM consumption by educating law enforcement and other stakeholders about problematic sexual behaviour. Such interventions remain speculative at best.
In reality, what is often categorised as CSEAM content can range from content featuring severe forms of sexual violence to content as mundane as a mirror selfie. In certain cases, the primary harm might not stem from the content itself but from its leaking and the lack of consent around its leaking. The judgment’s binary framework of good vs bad, of perverted predator vs innocent prey leaves little room for emphasis on consent, child development and age-appropriateness. Such emphasis would have ensured not just the preservation of rights and agency but would have also ensured that the child who is 17 years and 364 days does not stand to lose protection the next day. Such consent and agency-based approach would have been far more victim-centric in the long run.
The Court’s emphasis on mandatory reporting under POCSO is also a sticking feature. Ever since the POCSO act came into force, civil society organisations working with children have been called on and questioned time and again to ensure that every case of sexual offences against children is reported to the police. Yet, scant attention has been paid to what happens after these reports are filed. Time and again, from Kolkata to Badlapur, the law enforcement’s response is often fraught with delays, victim-blaming and responsibility-shirking. The mandatory recording of offences under POCSO is perhaps the bigger gap that needs to be fixed.
The judgment also calls for tech platforms to report cases of CSEAM to local police. If this is to be a practical solution, it’s essential to audit whether local police stations are equipped to handle the high volume of complaints and conduct victim identification in a sensitive manner. Will it lead to a more streamlined process of justice or will the system become overburdened?
The judgment focuses on victim-centric processes. This is laudable but could have been better informed. The Court’s focus on the vulnerability of child victims misses one of the most critical aspects of victim support: Content takedown. For many victims of CSEAM the most pressing need is the swift removal of the offending content, not legal action or counselling. Many of the cases that are reported to our helpline for children facing online risks come after the victim has attempted going to the police. Sometimes the FIR is filed but the content remains online.
This is symptomatic of the criminal justice system downstream from the courts when it deals with cases of sexual offences against children. The system is geared to catch the perpetrator but it does not make space to consider victim priorities. This is a gap in the system that needs to be addressed with urgency but the judgment glosses over this vital aspect.
Lastly, the ruling rightly calls for the term “child pornography” to be replaced with the more accurate “Child Sexual Exploitation and Abuse Material” (CSEAM). This is fine but this strain of progressivism and issue-awareness that resulted in terminology change should have been carried forward.
The judgement does touch on aspects of sex education and consent, rightly flagging them as important issues to address for general awareness. However, when speaking of implementation of the law, the judgment completely negates the complexities of adolescent behaviour, consent, and the inefficiencies of law enforcement. This makes it a missed opportunity for meaningful, context-sensitive protections for children.
This is not just a legal issue but an existential one for every Indian adolescent. Not having the right to follow your normal age-appropriate biological urges, that also is oppression.
The writers are co-founders and directors, Rati Foundation
