Why does the Supreme Court want “child pornography” cases to be treated as CSEAM? Explained

A recent Supreme Court ruling criminalized the possession and storage of child sexual exploitation and abuse material (CSEAM) and sought clarification on how various high courts have interpreted the matter.

Earlier this year, the Madras High Court had quashed a criminal case against a 28-year-old man who had downloaded two child pornography videos on his mobile phone. The Chennai Police had lodged an FIR under Section 67B of the Information Technology Act and Section 14(1) of the POCSO Act.

The court had said that “mere possession” of such content did not violate the law unless the person had actively “abused a child for pornographic purposes.”

However, the Supreme Court rejected the ruling and concluded that possession of such material constitutes criminal liability. The judges concluded that not only physical possession, but also “constructive possession” – that is, the power to control the material coupled with the knowledge of that control – was protected under Section 15 of the Child Sexual Protection Act Criminal offenses (POCSO) would be covered even if the person did not actively produce or distribute the content.

Decoding the SC verdict

The Madras High Court verdict was challenged by two NGOs: Just Rights for Children Alliance and Bachpan Bachao Andolan. The petition, as quoted by The Times of India, states: “The impugned order… gives the impression that persons who download and possess ‘child pornography’ will not be prosecuted.” This would promote “child pornography” and be detrimental to the welfare of harm children. “It creates the impression among the public that downloading and possessing ‘child pornography’ is not a crime and would increase the demand for ‘child pornography’ and encourage people to involve innocent children in pornography.”

However, the Supreme Court noted that the misnomer “child pornography” does not capture the full extent of the offense and may lead to trivialization of the offense because pornography can be viewed as a consensual act between two adults.

“We have spoken about the ongoing impact of ‘child pornography’ on child victimization and abuse…” We have proposed to Parliament to introduce an amendment to the POCSO so that the definition of “child pornography” is “sexually abusive and exploitative material for Children” (CSAEM). We have suggested that an ordinance may be brought,” the bench said.

How to interpret CSEAM

The SC ruled that CSEAM better reflects the reality that these images and videos are not only pornographic but are records of incidents in which a child was either sexually exploited or abused.

“We also prohibit courts from using the term ‘child pornography’ and instead the term… (CSEAM) should be used in court orders and judgments of all courts across the country,” the court said.

The ruling expands the interpretation of CSEAM laws, which criminalize the mere possession of such material, and closes legal loopholes previously exploited in court rulings. Strengthens the POCSO Act as a tool to combat online child exploitation and provides for stricter penalties. The focus is on victim protection, rapid removal of content and advocating for the psychological well-being of underage victims. It also encourages technology platforms to report CSEAM cases to improve cooperation between law enforcement and online service providers.

Important recommendations to the government

The court recommended replacing “child pornography” with “child sexual exploitation and abuse material” (CSEAM) in all court orders and laws.

The court emphasized the importance of positive, age-appropriate sex education to prevent harmful sexual behavior and promote understanding of consent, which will help prevent the use and spread of CSEAM.

Social media intermediaries must not only remove CSEAM but also report such content to local authorities under the POCSO Act. Compliance with the IT Act alone does not release you from liability.

The court suggested raising awareness of CSEAM through public campaigns to destigmatize reporting and increase community vigilance. It highlighted the need for psychological counseling and rehabilitation services for both victims and offenders, including cognitive behavioral therapy (CBT) for those involved in CSEAM.

What constitutional and legal provisions affect child protection?

Article 15(3): Authorizes the State to make special arrangements for the protection and welfare of children.

Article 21: Right to life and personal liberty, including the protection of children from exploitation and abuse.

Article 39 (e) and (f): Directs the State to ensure that children are not abused and are provided with opportunities and facilities for healthy development in order to protect their dignity and freedom.

Article 47: Focuses on improving public health, including preventing the exploitation of children and ensuring their well-being.

Under POCSO (Protection of Children from Sexual Offenses)

Section 13: Defines child pornography (now CSEAM) and punishes its production, distribution and possession.

Section 14: Imposes penalties for using a child for pornographic purposes, with increasing severity for repeat offenses.

Section 15: Penalizes the storage of child sexual abuse material for commercial purposes and provides for strict consequences for possession or storage.

Section 19: Requires reporting of crimes under the POCSO Act and requires citizens, including technology companies, to report any suspected CSEAM-related activities.