The Supreme Court on Monday ruled that watching or possessing sexually explicit material involving minors is illegal under the Protection of Children from Sexual Offences (Pocso) Act, overturning a controversial Madras high court order, and urged the Union government to promote sex education in the country and to change the legal definition of “child pornography” to “child sexual exploitative and abuse material (CSEAM)” to reflect the true gravity of such crimes.
Marking a significant move in the fight against child exploitation, the judgment by a bench comprising Chief Justice of India (CJI) Dhananjaya Y Chandrachud and justice JB Pardiwala emphasised that the consumption of sexually explicit content involving minors is not just an act of personal vice but a severe criminal offence that perpetuates the cycle of child abuse.
“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 does 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,” said the bench, rejecting the argument that the viewing or possession of such material might not meet the legal threshold of criminal conduct.
The bench pointed out that the term “child pornography” is a misnomer that fails to capture the true nature of the crime because the word “pornography” often connotes consensual adult conduct.
{{/usCountry}}The bench pointed out that the term “child pornography” is a misnomer that fails to capture the true nature of the crime because the word “pornography” often connotes consensual adult conduct.
{{/usCountry}}“The term ‘child sexual exploitative and abuse material’ or ‘CSEAM’ more accurately reflects the reality that these images and videos are not merely pornographic but are records of incidents, where a child has either been sexually exploited and abused or where any abuse of children has been portrayed through any self-generated visual depiction,” held the court, placing emphasis on the criminal nature of creating, distributing and consuming such content.
The ruling, authored by justice Pardiwala, directed all courts to refrain from using the term “child pornography” in judicial orders and judgments, mandating the adoption of CSEAM to prevent the inadvertent trivialisation of these crimes.
The Supreme Court’s ruling marks a transformative step in redefining how child sexual exploitation crimes are viewed and addressed in India. By rejecting the term “child pornography” and emphasising the illegality of viewing or possessing such material, the highest court of the land has sent a strong message that society must no longer trivialise or mischaracterise these heinous acts. Simultaneously, the court’s recommendations urge a comprehensive, multifaceted approach involving legislative changes, education, awareness, and support systems to protect children from exploitation and abuse.
Delving into the profound impact of CSEAM on victims, the court highlighted that these crimes extend beyond physical abuse to severe psychological, emotional and social consequences.
“Child sexual exploitative material is deeply degrading to the dignity of children. It reduces them to objects of sexual gratification, stripping them of their humanity and violating their fundamental rights,” underlined the bench, adding each instance of the distribution or viewing of these materials perpetuates the victim’s suffering, constituting a continuous re-victimisation that makes it increasingly difficult for them to heal.
The top court overruled a controversial judgment by the Madras high court, which held in January that passive consumption of child pornography did not constitute an offence under the Pocso Act or the Information Technology Act. According to the high court, a child or children must have been used for pornography purposes to attract charges under the Pocso Act, implying that passive consumption without direct involvement would not constitute a crime. Quashing criminal charges against a man, the high court further reasoned that Section 67B of the Information Technology Act, which punishes the publishing, transmitting or creating of material depicting children in sexually explicit acts, does not extend to mere possession or viewing. NGOs Just Rights for Children Alliance and Bachpan Bachao Andolan assailed the high court ruling in the top court. Senior counsel HS Phoolka represented the NGOs while senior advocate Swarupama Chaturvedi represented the National Commission for Protection of Child Rights (NCPCR) in the matter, supporting the appeal.
Setting aside the high court judgment and restoring the criminal prosecution in the case, the bench expanded the legal interpretation of the Pocso Act, particularly Section 15, to include stringent measures against the possession, storage and viewing of child pornography. The court has outlined that even the act of viewing child pornography without physically possessing it (on streaming sites or using links) on any device falls within the ambit of “constructive possession” under the law. It clarified that Section 15 of the Pocso Act outlines three separate offences. The first offence incriminates those who fail to delete, destroy or report child pornographic material that they intend to share while the second category criminalises the act of actually sharing, showing, or preparing to share child pornography. The third offence focusses on those who store or possess such content for commercial gain, like selling or using it for any form of profit. The ruling asserted that both Pocso and the IT Act should be interpreted in a way that closes any loopholes, ensuring that offenders cannot escape on technicalities.
Bhuwan Ribhu, petitioner and founder of Just Rights for Children Alliance, applauded the apex court fir paving the way globally in establishing a framework to protect exploitation of children. “This judgment will have long lasting and global impact on society, crime and child rights and will be etched in history,” he added.
Promote sex education:
The 199-page judgment highlighted the significant misconceptions surrounding sex education in India, which contribute to its inadequate implementation. Many parents and educators harbour conservative views, seeing discussions about sexual health as inappropriate or embarrassing, lamented the bench, adding this societal stigma creates a reluctance to address sexual health openly.
Addressing prevalent misconceptions, the bench refuted the argument that sex education encourages promiscuity among youth. It cited evidence showing that comprehensive sex education delays the onset of sexual activity and promotes safer practices among those who are sexually active. The court noted that in some Indian states, sex education programmes face resistance due to the belief that they contradict traditional values, leading to bans that leave many adolescents without accurate information. According to the bench, the lack of proper education often drives teenagers and young adults to the internet, where they encounter unmonitored and unfiltered information, which can plant the seeds of unhealthy sexual behaviours.
The Supreme Court urged the government to promote positive, age-appropriate sex education as a crucial tool in preventing harmful sexual behaviours, including the viewing and distribution of sexually explicit material involving minors.
“Positive sex education plays a critical role in preventing youth from engaging in harmful sexual behaviours, including the distribution and viewing of CSEAM,” stated the bench. It called for education that goes beyond biological aspects to include discussions on consent, healthy relationships, gender equality and respect for diversity. Such an approach, the court noted, could reduce the incidence of sexual violence and foster healthier attitudes toward sexuality and relationships.
The court highlighted the statutory obligations under Sections 43 and 44 of the Pocso Act, which mandate the central and state governments, as well as the NCPCR, to ensure widespread awareness of the Act through media and to provide training to government officials, including police officers, for its effective implementation. It emphasised that these obligations should extend beyond mere publicity and include the provision of sex education and awareness programs in schools and other educational settings.
“All steps and efforts of the appropriate government and the commission towards the compliance of Sections 43 and 44 must go beyond just the textual wording of the said provisions and ought to earnestly take into account the pragmatic necessities and requirements for curtailing the issue of child abuse, exploitation, and addiction to pornography,” the court held.
The judgment further called for a compassionate societal approach toward victims of child sexual exploitation, emphasizing the need for robust legal frameworks, accountability for perpetrators, and societal change in attitudes toward victims.
“Ultimately, it is our collective responsibility to ensure that victims of child pornography receive the care, support, and justice they deserve. By fostering a compassionate and understanding society, we can help them find their path to recovery and regain a sense of safety, dignity, and hope,” the bench concluded.
Recommendations to the Centre:
The judgment provided detailed suggestions to the central government, underscoring legislative and institutional reforms to address the issue. It urged Parliament to consider amending the Pocso Act to replace the term “child pornography” with “child sexual exploitative and abuse material” (CSEAM) to better reflect the nature of the crime. It suggested that this amendment could be introduced through an ordinance in the interim.
While there is need for psychological counselling, therapeutic interventions and educational support for victims to help them heal and reintegrate into society, the bench added, programmes like cognitive behavioural therapy (CBT) may help address the cognitive distortions that fuel such behaviour among offenders.
Raising awareness about the realities of CSEAM and its devastating impact is crucial for reducing its prevalence, noted the bench, adding public campaigns should aim to destigmatize reporting and encourage vigilance within the community.
The bench also called for a coordinated effort among educators, health care providers, law enforcement and child welfare services to identify individuals with problematic sexual behaviours early and implement intervention strategies. To give effect to these suggestions, the court proposed the formation of an expert committee tasked with devising comprehensive programmes for health and sex education and increasing awareness of Pocso among children from an early age.