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Supreme Court Rules on Criminal Liability for Child Pornography

  • 26 Sep 2024

On 23rd September 2024, the Supreme Court of India reaffirmed that engaging in any activity related to child pornography—including viewing, downloading, storing, possessing, distributing, or displaying—constitutes a criminal offense under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology Act.

  • Chief Justice's Remarks: A three-judge bench led by Chief Justice D.Y. Chandrachud underscored that the initial sexual act represents only the start of a child's victimization, noting that the recording and dissemination of these acts exacerbate the psychological trauma for victims.
  • Terminology Change Proposal: The court urged Parliament to consider amending the POCSO Act to replace the term “child pornography” with “Child Sexual Exploitative and Abuse Material (CSEAM),” stating that the current term fails to capture the full gravity of the offense.
  • The Supreme Court instructed lower courts to adopt this new terminology in their judgments and orders.
  • Critique of Existing Terminology: The judge criticized the term ‘child pornography’ as a misnomer that trivializes the crime, noting that such terminology inaccurately suggests a consensual nature akin to adult pornography.
  • Link to Actual Abuse: The court declared that there is no distinction between viewing CSEAM and the act of child sexual abuse itself, as both share the same malicious intent of exploiting and degrading a child for sexual gratification.
  • Case Background: This ruling followed an appeal by the NGO Just Right for Children Alliance, challenging a Madras High Court decision that had suggested that mere possession of child pornography in private was not an offense.
  • The Supreme Court found the High Court's interpretation flawed, as it neglected Section 15 of the POCSO Act, which explicitly criminalizes possession and storage of child pornographic material.
  • Legal Principles Established: The ruling highlighted Section 67B of the IT Act, which penalizes not only the use and publication of obscene materials but also the mere act of browsing or collecting such content.
  • The court also introduced the principle of “constructive possession,” establishing that individuals can be held accountable for possessing material if they have the capability and knowledge to control it, even if they claim ignorance of the content.
  • Responsibility of Internet Users: The judgment emphasized that individuals must report any unknown links or automatic downloads of such material to authorities, reinforcing that evading liability by distance from the material is unacceptable.