Why SC wants to label ‘child pornography’ CSAEM

medium nocaption113653680The Supreme Court on September 23 held that watching and downloading ‘child pornography’ are offences under the POCSO (Protection of Children from Sexual Offences) Act and the Information Technology Act. A bench headed by Chief Justice DY Chandrachud set aside the Madras high court ruling that had said mere downloading and watching child pornography was not an offence under POCSO and IT Act. The bench also said ‘child pornography’ should be referred to as ‘child sexually abusive and exploitative material’ (CSAEM).The case which triggered thisThe Chennai Police registered an FIR under Sections 67B of the Information Technology Act and Section 14(1) of the POCSO Act after it seized the phone of a 28-year-old man and discovered that he had downloaded and possessed child pornography.Madras HC judgmentThe Madras HC in its impugned judgment of January 11 this year quashed the FIR and criminal proceedings against the accused, holding that watching ‘child pornography’ in private would not fall within the scope of POCSO Act.A bench of Justice N Anand Venkatesh reasoned that the accused had merely downloaded the material and watched it in private and it was neither published nor transmitted to others.“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,” the court said.Challenge in SCTwo NGOs – Just Rights for Children Alliance and Bachpan Bachao Andolan – challenged the Madras HC order. Senior Advocate HS Phoolka represented them.“The impugned order… gives the impression that individuals who download and possess ‘child pornography’ will not face prosecution. This will encourage ‘child pornography’ and would act against the well-being of children. The impression is given to the general public that downloading and possessing ‘child pornography’ is not an offence and it would increase the demand for ‘child pornography’ and encourage people to involve innocent children in pornography,” the petition said. !function(){"use strict";window.addEventListener("message",(function(a){if(void 0!==a.data["datawrapper-height"]){var e=document.querySelectorAll("iframe");for(var t in a.data["datawrapper-height"])for(var r=0;r What the law saysIn India, both the POCSO Act 2012 and the IT Act 2000, along with other laws, criminalise the creation, distribution and possession of child pornography.Section 67B of IT Act says that anyone publishing or transmitting ‘child pornography’ is liable to up to five years in jail and a fine of up to Rs 10 lakh. For second or repeated offences, the jail term goes up to seven years but the fine amount remains the same. What SC saidThe SC bench, also comprising Justices JB Pardiwala and Manoj Misra, laid down certain guidelines on child pornography and its legal consequences.“We have said about lingering impact of ‘child pornography’ on victimisation and abuse of children…. We have suggested to Parliament to bring an amendment to POCSO… so that definition of ‘child pornography’ can be referred to as ‘child sexually abusive and exploitative material’ (CSAEM). We have suggested an Ordinance can be brought in,” it said. The court observed that the term ‘child pornography’ is a misnomer that fails to capture the full extent of the crime and the use of that term can lead to a trivialisation of the crime, as pornography is often seen as a consensual act between adults.The court, hence, coined the new term – CSEAM --which 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.CSAEM, the court said, 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. “We further forbid the courts from using the term ‘child pornography’ and instead the term… (CSEAM) should be used in judicial orders and judgments of all courts across the country.”Other suggestions to government* Implement comprehensive sex education programmes that include information about the legal and ethical ramifications of ‘child pornography’. This can help deter potential offenders. * Provide support services to the victims and have rehab programmes for offenders.* Raise awareness about the realities of CSAEM and its consequences through public campaigns. * Identify at-risk individuals early and implement intervention strategies for youth with problematic sexual behaviours.