Source: Supreme Court  

Why in News? 

The Supreme Court of India has recommended that the Parliament should amend the Protection of Children from Sexual Offences Act,2012 (POCSO) to replace the term "child pornography" with "child sexual exploitative and abuse material" (CSEAM).  

• The Court stated that the term "child pornography" trivializes the gravity of the crime, as it suggests consent and voluntary acts, whereas CSEAM accurately reflects the exploitation and abuse of children.  
• The Court directed all judicial bodies to use CSEAM in their rulings to highlight the seriousness of these offenses. 
• Chief Justice of India DY Chandrachud and Justice JB Pardiwala  held in the matter of Just Rights for Children Alliance v. S. Harish     

What was the Background of Just Rights for Children Alliance v. S. Harish Case? 

• On 29th January 2020, the All-Women's Police Station in Ambattur, Chennai received information from the Additional Deputy Commissioner of Police regarding a Cyber Tipline Report from the National Crimes Record Bureau (NCRB). 
• The report alleged that the respondent no. 1 was an active consumer of child pornography and had downloaded such material on his mobile phone. 
• An FIR was registered on the same day against the respondent no. 1 for offenses under Section 67B of the Information Technology Act, 2000 (IT Act) and Section 14(1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO). 
• During the investigation, the respondent's mobile phone was seized and sent for forensic analysis. 
• The respondent admitted to regularly viewing pornography while in college when questioned by investigators. 
• The Computer Forensic Analysis Report dated 22nd August 2020, revealed two video files related to child pornography on the respondent's phone, along with over a hundred other pornographic video files. 
• Upon completion of the investigation, a charge sheet was filed on 19th September 2023, against the respondent for offenses under Section 67B of the IT Act and Section 15(1) of POCSO. 
  • The charge under POCSO was changed from Section 14(1) to 15(1) based on the evidence collected. 
• The respondent filed a Criminal Original Petition under Section 482 of the Code of Criminal Procedure, 1973, in the High Court of Judicature at Madras, seeking to quash the charge sheet. 
• The High Court of Madras allowed the petition and quashed the chargesheet on 11th January 2024, effectively terminating the criminal proceedings against the respondent. 
• The appellants, who were not parties to the original proceedings, sought leave from the Supreme Court to challenge the High Court's judgment, citing the serious issue of public importance involved in the matter. 

What were the Court’s Observations? 

• High Court of Madras:  
  • The High Court quashed the criminal proceedings against the respondent, ruling that merely possessing or watching child pornography in private, without publishing or transmitting it, does not constitute an offense under Section 14(1) of the POCSO Act or Section 67B of the IT Act. 
  • The High Court held that to make out an offense under these laws, there must be evidence that the accused used a child for pornographic purposes or published/transmitted the material, which was not established in this case. 
• Supreme Court: 
  • The Court directed the Parliament to consider amending the Protection of Children from Sexual Offences Act (POCSO) to replace the term "child pornography" with "child sexual exploitative and abuse material" (CSEAM). 
    • The Court suggested that the Union of India consider bringing about this amendment through an ordinance in the interim. 
  • The Court instructed all courts to refrain from using the term "child pornography" in any judicial order or judgment, and instead endorse the term "child sexual exploitative and abuse material" (CSEAM). 
  • The Court emphasized that the term "child pornography" fails to capture the full extent of the crime and may trivialize the offense, as pornography is often associated with consensual acts between adults. 
  • The Court noted that the term CSEAM more accurately reflects the reality that such materials are records of incidents where a child has been sexually exploited and abused. 
  • The Court stated that using the term CSEAM appropriately emphasizes the exploitation and abuse of the child, highlighting the criminal nature of the act and the need for a serious response. 
  • The Court found that the High Court had committed an egregious error in its judgment and consequently set aside the impugned judgment and order. 

What does Section 67B of the IT Act Address? 

• Covers publishing, transmitting, creating, collecting, browsing, downloading, advertising, promoting, exchanging, or distributing child pornography in electronic form 
• Includes cultivating or enticing children into online relationships for sexually explicit acts 
• Punishable with 5 years imprisonment and fine up to 10 lakh rupees for first conviction 
• Subsequent convictions: Up to 7 years imprisonment and fine up to 10 lakh rupees 

Analysis of Section 67B of the IT Act  

• Section 67B(a): Dissemination of Child Pornography  
  • Penalizes publication or transmission of material involving a child in sexually explicit acts 
  • Requires actual publication/transmission and involvement of the accused in the process 
• Section 67B(b): Creation, Collection, and Engagement with Child Pornographic Material  
  • Covers creation of text or image-based content depicting children in obscene/indecent/sexually explicit manner 
  • Penalizes collection, browsing, downloading, advertising, promotion, exchange, or distribution of such material 
  • More expansive than 67B(a), including creation and engagement with material 
• Section 67B(c): Enticement of Children for Sexual Acts  
  • Penalizes inducing or enticing a child to participate in sexually explicit acts using computer resources 
  • Actual inducement/enticement is sufficient; child's participation not necessary for offense 
• Section 67B(d): Facilitation of Online Child Abuse  
  • Penalizes any form of facilitation of online child abuse 
  • No specific intention required; act must have the likelihood to aid or enable online child abuse 
• Section 67B(e): Recording of Sexual Acts Involving Children  
  • Penalizes recording of sexually explicit acts with or in the presence of a child 
  • Child need not be physically present; exposure to such acts (e.g., through video) is sufficient 

What is the Legislative History and Intent of the POCSO Act? 

• Enacted to address inadequacies in existing laws regarding sexual offenses against children 
• Aims to provide a comprehensive framework for protecting children from sexual abuse and exploitation 
• Designed to be child-friendly in terms of evidence recording, investigation, and trial procedures 

Analysis of Section 15 of POCSO 

• Definition of "Child Pornography" under POCSO: 
  • Section 2(1)(d) of POCSO defines "child" as any person below the age of eighteen years. 
  • The definition is gender-neutral and gender-fluid. 
  • Section 2(1)(da) defines "child pornography" as any visual depiction of sexually explicit conduct involving a child 
  • Includes photographs, videos, digital/computer-generated images indistinguishable from an actual child 
  • Also covers images created, adapted, or modified to appear to depict a child 
• Determination of "Child" in Pornographic Material: 
  • Prima facie appearance test: Material must appear to involve a child to an ordinary person of prudent mind 
  • Subjective satisfaction criteria applied, rather than objective age determination 
  • Rationale: Practical difficulties in conclusively establishing age in pornographic material 
• Three Distinct Offenses under Section 15: 
  • Section 15(1): Storing/possessing child pornography without deleting/destroying/reporting, with intent to share/transmit 
  • Section 15(2): Storing/possessing for transmitting, displaying, propagating, or distributing 
  • Section 15(3): Storing/possessing for commercial purposes 
• Concept of Possession: 
  • 2019 Amendment added "possession" alongside "storage" in all subsections of Section 15 
  • Includes concept of constructive possession: power and intention to control, even without immediate physical possession 
• Presumption of Culpable Mental State (Section 30 of POCSO): 
  • Special Court shall presume existence of culpable mental state in prosecutions under POCSO 
  • Accused may rebut this presumption by proving lack of such mental state 
  • Standard of proof for rebuttal: beyond reasonable doubt 
  • "Culpable mental state" includes intention, motive, knowledge of a fact, and belief in or reason to believe a fact 

What are the Supreme Court suggestions to the Union of India regarding child sexual abuse and exploitation material (CSEAM)? 

• Consider amending the POCSO Act to replace the term "child pornography" with "child sexual exploitative and abuse material" (CSEAM) to more accurately reflect the nature of these offenses. This could be done via an amendment or ordinance. 
• Implement comprehensive sex education programs that include information about the legal and ethical ramifications of CSEAM to help deter potential offenders. 
• Provide support services for victims and rehabilitation programs for offenders, including psychological counseling, therapeutic interventions, and educational support. 
• Conduct public awareness campaigns about the realities of CSEAM and its consequences to help reduce its prevalence. 
• Implement early identification and intervention strategies for youth with problematic sexual behaviors (PSB), including training for educators, healthcare professionals and law enforcement to recognize warning signs. 
• Implement school-based programs to educate students about healthy relationships, consent, and appropriate behavior to help prevent PSB. 
• Consider constituting an Expert Committee to devise a comprehensive program for health and sex education, as well as raising awareness about POCSO among children from an early age. 
• Courts should use the term "child sexual exploitative and abuse material" (CSEAM) instead of "child pornography" in all judicial orders and judgments.