A two-judge bench of the Supreme Court headed by Chief Justice of India (CJI) DY Chandrachud set aside a Madras High Court order which said that downloading and watching child sexual abuse content in private does not constitute an offence under the Information Technology (IT) Act and Protection of Children from Sexual Offences (POCSO) Act. Calling the HC’s order “an egregious error”, the apex court said that POCSO is a comprehensive law designed to address all aspects of child sexual abuse and that criminal proceedings against the accused in the case were quashed without perusing the chargesheet and other materials on record.
In their 200-page-long judgement passed on Monday, September 13, CJI Chandrachud and Justice JB Pardiwala also forbade all courts from using the term “child pornography”, directing it to be replaced with "Child Sexual Exploitative and Abuse Material" (CSEAM).
The top court had, in March this year, termed the Madras HC ruling as “atrocious”, while hearing an appeal filed by the Just Rights for Children Alliance, a coalition of NGOs. Restoring criminal proceedings against the accused, the bench also made observations about the state of sex education in India, and put down suggestions for the Union government concerning the prevention of child sexual abuse.
On January 1, 2020, the Chennai police received a CyberTipline Report from the National Crimes Record Bureau (NCRB) stating that S Harish, a 28-year-old man, had allegedly downloaded Child Sexual Abuse (CSA) material on his mobile phone. CyberTipline, a centralised reporting system for the online exploitation of children, is operated by the National Center for Missing & Exploited Children (NCMEC) — a non-profit organisation based out of the US. According to its website, “The public and electronic service providers can make reports of suspected online enticement of children for sexual acts, child sexual molestation, child sexual abuse material, child sex tourism, child sex trafficking, unsolicited obscene materials sent to a child, misleading domain names, and misleading words or digital images on the internet.” These will then be reviewed by NCMEC and made available to the appropriate law enforcement agencies.
The man was booked under Sections 67 B of the IT Act and Section 14(1) of the POCSO Act (using child or children for pornographic purposes) and his mobile phone was seized and sent to a forensic science laboratory for analysis. The judgement quoted the forensic analysis report stating that there were two CSA videos and hundreds of other pornographic videos. The chargesheet, however, only booked him under Section 15(1) of the POCSO Act (the failure to delete, destroy or report any child pornographic material in possession of any person with an intention to share or transmit).
The man appealed the charge sheet before the Madras HC. Justice N Anand Venkatesh, in January this year, quashed the first information report (FIR) and criminal proceedings against him, stating that watching CSA material in private would not fall within the scope of the POCSO Act. The court reasoned that the accused had merely downloaded the material and watched the child sexual abuse content in private and it was neither published nor transmitted to others.
Justice Anand noted that under section 14(1) of the POCSO Act, “A child or children must have been used for pornography purposes. Since he has not used a child or children for pornographic purposes, at best, it can only be construed as a moral decay on the part of the accused person."
Further, he said that to constitute an offence under section 67-B of the IT Act, the accused person must have “published, transmitted, created material depicting children in a sexually explicit act or conduct … It does not cover a case where a person has merely downloaded in his electronic gadget, child pornography and he has watched the same without doing anything more.”
Refuting this, the SC observed that the HC either “consciously did not deem it necessary” or “inadvertently failed” to refer to Section 15, under which the chargesheet was filed. The apex court then restored the criminal proceedings against Harish.
The SC also said that if courts cancel criminal proceedings without thinking about the legal presumption, it “scuttles” the trial process and it denies both sides the chance to present evidence and have a fair trial. “This would not only defeat the very case of the prosecution but would also thwart the very object of a particular legislation and thereby undermine the public confidence in the criminal justice system,” the SC said.
The bench further pointed out that the HC, while quashing the criminal proceedings against the accused, “completely failed” to look into the actual charge against him under Section 15(1) of the POCSO Act and instead relied only on the FIR – in which he was booked under Section 14. The court, thus, observed that there was a “serious lapse on part of the High Court” in failing to consider Section 15 of the POCSO especially when the chargesheet had already been filed.
Going into the history of the POCSO Act, the SC reiterated that it is a “self-contained, comprehensive” piece of legislation.
“The primary legislative intent behind the enactment of the POCSO was to create a comprehensive legal framework that would not only punish offenders but also provide a child-friendly system for the recording of evidence, investigation, and trial of offenses,” the court said, adding that the Act was designed to cover all forms of sexual abuse against children, “including sexual harassment, child pornography, and aggravated sexual assault, among others.”.
Elaborating on Section 15 of the Act, the court noted that three different forms of storage or possession of CSEAM are punishable – possessing CSEAM and failing to delete, destroy or report the same with the intention to share or transmit such material; possessing CSEAM for transmitting, displaying, propagating, or distributing it; and possessing CSEAM for commercial purpose.
The apex court also observed that Section 15 of the Act penalises storage or possession and that there is no requirement for the actual transmission of the material for the Section to apply. “...it is the intention which is being punished and not the commission of any criminal act in the traditional sense,” the court said.
The SC further said that the police and courts should be cognisant of the three sub-sections of Section 15 being independent and distinct offences. “The three offences cannot coexist simultaneously in the same set of facts. They are distinct from each other and are not intertwined that they cannot survive without each other,” the SC bench observed.
Further, the bench also asked the police and courts to be mindful while examining any matter involving the storage or possession of any child pornography.
“If it finds that particular sub-section of Section 15 is not attracted, it must not jump to the conclusion that no offence at all is made out under Section 15 of the POCSO… both should try to ascertain that if offence is not made out in one particular sub-section, whether the same is made out in the other two sub-sections or not,” the SC noted.
In its order, the two-judge bench also forbade all the courts across India from using the term "child pornography" and directed them to use the term "Child Sexual Exploitative and Abuse Material" (CSEAM) in judicial orders and judgements.
“The term "child sexual exploitative and abuse material" (CSEAM) rightly places the emphasis on the exploitation and abuse of the child, highlighting the criminal nature of the act and the need for a serious and robust response,” the bench said.
Further, pointing out that "child pornography" is a ‘misnomer’ that fails to capture the full extent of the crime, the court said that usage of the term could lead to the trivialisation of the crime. “It undermines the victimisation because the term suggests a correlation to pornography — conduct that may be legal, whose subject is voluntarily participating in, and whose subject is capable of consenting to the conduct,” the SC said.
The court also observed that the demand for CSEAM would lead to more production and distribution; which would in turn motivate abusers to create the material. The court noted that this cycle of abuse and exploitation underscores the need for stringent measures to not only punish those who create and distribute CSEAM but also to deter potential consumers and reduce the demand for such material.
Emphasising the need for sex education, the SC bench also observed that in India, there are widespread misconceptions about sex education, which limit its implementation and effectiveness. Pointing out that sex education is prevalently misconstrued to encourage promiscuity among youth, the court said that research shows the opposite – that comprehensive sex education delays the onset of sexual activity and promotes safer sex practices among those who are sexually active.
The court also said that effective sex education encompasses a wide range of topics, including consent, healthy relationships, gender equality, and respect for diversity, and not just biological aspects of reproduction, as is the common belief.
“Positive, age-appropriate sex education plays a critical role in preventing youth from engaging in harmful sexual behaviours, including the distribution, and viewing of CSEAM,” the bench observed. It also added, “Comprehensive sex education programs also teach youth about the importance of consent and the legal implications of sexual activities, helping them understand the severe consequences of viewing and distributing child pornography.”
The two-judge bench put forth some suggestions to the Union government’s Ministry of Women and Child Development, in preventing and addressing child sexual abuse. The court said that the Parliament should “seriously consider” bringing about an amendment to the POCSO Act to substitute the term ‘child pornography’ with CSEAM. “The Union of India, in the meantime, may consider to bring about the suggested amendment to the POCSO by way of an ordinance,” the court said.
The court also suggested that implementing comprehensive sex education programs that include information about the legal and ethical ramifications of child pornography can help deter potential offenders. Providing support services to victims and rehabilitation programs for the offenders were also mentioned.
“These services should include psychological counselling, therapeutic interventions, and educational support to address the underlying issues and promote healthy development. For those already involved in viewing or distributing child pornography, CBT has proven effective in addressing the cognitive distortions that fuel such behaviour. Therapy programs should focus on developing empathy, understanding the harm caused to victims, and altering problematic thought patterns,” the apex court noted.