Viewing, storing child sexual exploitative and abuse material an offence under POCSO, IT Act, says Supreme Court

Bench says the sexual act was only the beginning of a child’s victimisation; urges Parliament to amend POCSO Act to substitute the term “child pornography” with “Child Sexual Exploitative and Abuse Material”

The Supreme Court on Monday (September 23, 2024) held that viewing in private, downloading, storing, possessing, distributing or displaying pornographic acts involving children attract criminal liability under the Protection of Children from Sexual Offences Act (POCSO) and the Information Technology Act.

A three-judge Bench headed by Chief Justice of India D.Y. Chandrachud said the sexual act was only the beginning of a child’s victimisation.

Also read: Downloading child pornography is an offence

“It 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… The knowledge that their abuse is being watched by countless strangers, sometimes years after the actual event, exacerbates the psychological wounds on top of the trauma that was already induced by the act in the first place. This perpetuating violation deprives the victim of any remaining hope or chance to heal, recover from the abuse and find closure,” Justice J.B. Pardiwala, who authored the 200-page judgment termed as groundbreaking by the Chief Justice, observed.

The Supreme Court urged the Parliament to “seriously consider” amending the POCSO Act to substitute the term “child pornography” with “Child Sexual Exploitative and Abuse Material” or CSEAM.

The court said the government must promulgate an ordinance in the meantime to bring about the suggested amendment. It directed courts across the country to replace ‘child pornography’ with the term ‘Child Sexual Exploitative and Abuse Material’ or CSEAM in their judgments and judicial orders.

Reflect the reality

Justice Pardiwala said the description of the act as CSEAM would more accurately reflect the reality that these images and videos were not merely pornographic but were records of incidents during which children were sexually exploited and abused.

The court found the term ‘child pornography’ a misnomer which failed to capture the full extent and horror of the crime. “Each case of what is traditionally termed ‘child pornography’ involves the actual abuse of a child. The use of the term ‘child pornography’” can lead to a trivialisation of the crime, as pornography is often seen as a consensual act between adults. It undermines the victimisation,” the verdict pointed out.

The court found no difference between viewing CSEAM and the actual act of child sexual abuse, saying they both share a “common, malevolent intent: the exploitation and degradation of a child for the sexual gratification of the abuser”.

The verdict was based on an appeal filed by NGO, Just Right for Children Alliance, against a Madras High Court decision that mere possession or storage of any pornographic material was not an offence under the POCSO Act. The High Court had concluded that watching or downloading pornographic acts involving children in private domains was not a crime.

Justice Pardiwala asked why the High Court had missed taking into account Section 15 of the POCSO Act, which criminalised storage and possession of child pornographic material. Keeping such material without deleting them amounted to ‘possession’ or even intent to transmit them to others, the court reasoned.

The Bench drew attention to Section 67B of the Information Technology (IT) Act. The provision had penalised not only the use, transmission and publication of obscene materials, including child pornography, but made browsing, creation, collection, online facilitation or enticement of children into any sexual act or conduct an offence.

The judgment referred to ingenious ruses used by people to cover their tracks online. One of them was the circulation and sale of links containing child pornographic material. The court referred to how a person could view and delete these links to evade liability under POCSO and the IT Acts.

Noting that people should not escape criminal liability by distancing themselves from contraband, the apex court evolved the principle of ‘constructive possession’, according to which a person was accountable if at any point of time he had an invariable degree of power and knowledge to control, manipulate, alter, modify or destroy the material.

Unknown links or automatic downloads should not only be closed but reported to the authorities, the judgment noted.

Published - September 23, 2024 11:21 am IST