Don't use term "child pornography", says SC; urges Parliament to amend POCSO Act

New Delhi [India], September 23 : The Supreme Court on Monday urged the Parliament to bring a law amending the Prevention of Children from Sexual Offences (POCSO) Act to replace the term "child pornography" with "child sexual exploitative and abusive material."
The apex court today said that watching, downloading child pornography are offences under Prevention of Children from Sexual Offences (POCSO) Act and information technology law. The top court set aside the Madras High Court order that held downloading and watching child pornography is not an offence under POCSO stating that the High Court had committed "egregious error" in passing judgment.
A bench of Chief Justice of India DY Chandrachud and Justices JB Pardiwala said that pending enactment of the amendment, the Union government can bring in an Ordinance to this effect.
"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 top court said.
The apex court directed all courts not to use the term "child pornography" in any judicial order or judgement and instead the term CSEAM should be endorsed.
"The Parliament should seriously consider to bring about an amendment to the POCSO for the purpose of substituting the term "child pornography" that with "child sexual exploitative and abuse material" (CSEAM) with a view to reflect more accurately on the reality of such offences. The Union of India, in the meantime may consider to bring about the suggested amendment to the POCSO by way of an ordinance," the verdict stated.
It also ruled that mere watching and storing of pornography involving child on digital devices can be an offence under the the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) if the person concerned had the intention to share, transmit, and make some commercial gain or advantage from the same.
It held that the storage of such material, without deleting or without reporting the same, would indicate an intention to transmit.
The apex court made certain suggestions to Centre including implementing comprehensive sex education programs to give youth a clear understanding of consent and impact of exploitation.
It suggested raising awareness about the realities of child sexual exploitative material and its consequences through public campaigns can help reduce its prevalence. "These campaigns should aim to destigmatize reporting and encourage community vigilance," it said.
The NGOs Just Rights for Children Alliance and Bachpan Bachao Andolan, had filed appeal against the Madras High Court order passed in January which said that mere downloading and watching of child pornography is not an offence under the POCSO and Information Technology Act.
The Madras High Court had said that, to make out an offence under POCSO Act, a child or children should have been used for pornography purposes. It had added that to constitute an offence under IT Act the accused must have published, transmitted and created the material.
On January 11, this year, the Madras High Court had quashed the FIR and criminal proceedings against a 28-year-old man who had been charged with downloading child pornographic content to his mobile phone.
It had held that downloading and possessing child pornography does not amount to any offence under Section 67B of the Information Technology (IT) Act, 2000.
Chennai Police had registered a case against the accused under Sections 67 B of the IT Act and 14(1) of the POCSO Act after they seized the phone of the accused and discovered that he had downloaded and possessed child pornography.