Introduction 

• This is a landmark judgment where the Court laid down that the law on child pornography. 
• The Judgment was delivered by a 2- judge Bench consisting of Chief Justice DY Chandrachud and Justice JB Pardiwala.  

Facts

• 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.

Issues Involved

• Whether the persons should be charged under Section 15 (1) of POCSO Act?  

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.

Conclusion 

• The Court in this case discussed the law on pornography and termed it as “child sexual exploitative and abuse material.”