The Supreme Court’s emphatic and welcome ruling that child pornography is illegal, even if watched in private, even if stored on a mobile or electronic device without being forwarded, is a tough and welcome stand that does away with any ambiguity in the law.
In fact, the two-judge bench of justices DY Chandrachud and JB Pardiwala have urged the government to change the legal definition of child ‘pornography’, since the word implies a degree of consent. They want it replaced with “child sexual exploitative and abuse material” or CSEAM.
The landmark ruling authored by justice Pardiwala advocates for promoting positive sex education to create better awareness of sexual crimes involving minors and has called for a compassionate approach towards the victims of violence.
The ruling, writes Hindustan Times’s national legal editor, Utkarsh Anand: “marks a significant legal and moral shift in the fight against child exploitation.” The apex court has “not only fortified legal protections for minors but also set a global precedent in addressing one of the most heinous crimes.”
[Read Utkarsh Anand’s column here]
The challenge
The apex court was hearing a challenge to a January decision of the Madras high court to quash criminal proceedings at a fast-track sessions court.
In 2020, police had discovered two files of sexually explicit material involving minor boys on the mobile phone of a 24-year-old man. A case was filed against him under the Information Technology (IT) Act and POCSO.
Challenging the criminal proceedings, the now 28-year-old told the high court that even though he had been ‘addicted’ to watching pornography as a teenager, he had never watched sexually explicit material involving minors. He had also not attempted to publish or transmit the files to other people. He had only downloaded the files on his phone and watched them in his private space.
The single-judge bench agreed no criminal case was made out and he was guilty only of “moral decay”.
The judgment was challenged by an alliance of five different NGOs that came together as the Just Rights for Children. Appearing for the alliance, advocate HS Phoolka argued that the Madras high court had made a “serious error” that compromised the welfare of children.
[Read the Supreme Court judgment here]
Sex education to combat a growing scourge
Nine out of 10 boys and six out of 10 girls are exposed to some form of pornography before the age of 18. On average, a boy’s first exposure to porn is at the age of 12, notes the Madras high court judgement.
The apex court calls child sexual exploitation one of the most heinous offences that “begins with the sexual act, continues through its recording, and perpetuates as photographs and videos that float through cyberspace, freely accessible to anyone who has the ability to surf the internet.”
India accounts for the most online child sexual abuse imagery, according to the US-based National Centre for Missing and Exploited Children. The technology has certainly made it easier to produce and disseminate such images. A 2019 New York Times investigation found that tech companies had reported over 45 million online photos and videos of children being sexually abused—more than twice what they found the previous year.
Given the proliferation and exponential rise of exploitative child sexual material, the Supreme Court’s recommendation on sex education is welcome. In the past, “sex education” has been a red flag with politicians huffing and puffing that the concept is ‘alien’ to Indian culture.
Objections have also been raised that sex education might encourage promiscuity. In fact, says sexuality educator and author Leeza Mangaldas, research shows the opposite is true: Young people with access to sex education are more likely to delay sexual activity and less likely to indulge in risky sexual behaviour.
Age appropriate sexuality education should begin with education itself, Mangaldas tells me on the phone. But, “We don’t even teach kids the proper word for anatomy. We teach them to identify eyes, lips, arms, but when it comes to genitalia we use words like ‘shame-shame’. So, what message are you sending to children?”
Sex education, she continues, “Is central to positive and healthy relationships, to a safer and more equitable gender landscape. I’ve been saying this for years and now the Supreme Court is batting for comprehensive sexuality education. I can only hope we will see real change.”
If you see sexually explicit images or videos of minors on the web, please report it to cybercrime.gov.in or on 1930.
The following article is an excerpt from this week’s HT Mind the Gap. Subscribe here.
