Court has done well to clarify law on online content showing child sex abuse

The Supreme Court of India’s clear delineation of the penal consequences of accessing or storing sexual material concerning children is in complete consonance with the letter and spirit of the Protection of Children from Sexual Offences (POCSO) Act. Demonstrating an enlightened approach to the social questions that arise from the proliferation of online content featuring sexual exploitation of children, a three-Judge Bench has not only clarified the law but also drawn pointed attention to the legislative intent of presuming the culpable mental state of a person accessing and viewing such material. The Court has also advocated that the term ‘child pornography’ be avoided in both the law and in court verdicts, as it appears to trivialise the enormity of the offence of exploiting children to create and disseminate sexual material to gratify the perversions of a few. Instead, the Court has suggested that such content be described as ‘Child Sexual Exploitative and Abuse Material’ (CSEAM).

The verdict also lays to rest doubts over what exactly some provisions of the Information Technology Act, 2000, and POCSO Act say on the subject, as High Court verdicts have differed on their exact implications. The case arose from a Madras High Court judgment that quashed a criminal case against an individual who had viewed sexual content involving children on the ground that the law only criminalised creating and disseminating such content, and not merely watching it in the private domain. The apex court has now set aside the High Court order.

Invoking the doctrine of “constructive possession”, it has ruled that any act of viewing or displaying such material over the Internet without actual possession or storage in any device would also amount to “possession”, made punishable under Section 15 of POCSO, provided the person had a degree of control over such material. Further, an intent to share or transmit such material can also be inferred from any failure to delete, destroy or report such material. It has cautioned courts against narrow interpretation of some provisions so that the legislative intent of penalising cyber-offences relating to children is not defeated.

It has drawn attention to Section 67B of the IT Act, terming it a “comprehensive provision” to penalise various electronic forms of exploitation and abuse of children online. The Court has reminded platforms and intermediaries of their duty to remove such content as well as report it to police units concerned. Its advice to the government to implement comprehensive sex education programmes that include the legal and ethical ramifications of child sex abuse material merits immediate attention.

Source: The Hindu (India)

 
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