Suggesting the Parliament to “seriously consider” amending POCSO Act for substituting the word ‘child pornography’ with “child sexual exploitative and abuse material” (CSEAM) so that it could reflect more accurately on the reality of such offences, the Supreme Court on Monday ruled that watching and storage of child pornography material on the digital devices can be an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) if the person concerned had the intention to make some gain or advantage from the same.

Urging the parliament to “seriously consider” amending the POCSO Act, a bench of Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala, in a judgment today, said that in the meantime, the Central government may “consider to bring about the suggested amendment to the POCSO by way of an ordinance.”

Having flagged the necessity and immediacy of amending the POCSO Act and bringing an ordinance in the meantime, the top court today forbid all the courts across the country from using the term “child pornography” and instead, use “child sexual exploitative and abuse material” (CSEAM).

“We further forbid the courts from using the term “child pornography” and instead the term “child sexual exploitative and abuse material” (CSEAM) should be used in judicial orders and judgements of all courts across the country”, the judgment said in a direction having far- reaching effect.

“We put the courts to notice that the term “child pornography” shall not be used in any judicial order or judgment, and instead the term “child sexual exploitative and abuse material” (CSEAM) should be endorsed”, said one of the directions issued today.

Speaking for the bench, Justice Paridiwala said, “One must also be mindful of the fact that the term “child pornography” is a misnomer that fails to capture the full extent of the crime. It is important to recognize that each case of what is traditionally termed “child pornography” involves the actual abuse of a child.”

Further stating that the use of the term “child pornography” can “lead to a trivialization of the crime, as pornography is often seen as a consensual act between adults”, Justice Pardiwala, pronouncing the judgment, said “The term “child sexual exploitative and abuse material” (CSEAM) 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.”

In a series of suggestions to both the parliament and the Central government, the apex court, in its judgment today favoured imparting “comprehensive sex education programmes that include information about the legal and ethical ramifications of child pornography can help deter potential offenders” and suggested “constituting an Expert Committee tasked with devising a comprehensive programme or mechanism for health and sex education, as well as raising awareness about the POCSO among children across the country from an early age, for ensuring a robust and well-informed approach to child protection, education, and sexual well-being.”

It said that the schools can also play a crucial role in early identification and intervention. Implementing school-based programmes that educate students about healthy relationships, consent, and appropriate behaviour can help prevent problematic sexual behaviours (PSB).

The top court judgment came on the petitions by NGOs Just Rights for Children Alliance and the Bachpan Bachao Andolan who had challenged the January 11, 2024, Madras High Court judgment holding that the mere possession or storage of any pornographic material is not an offence under the POCSO. The High Court had further held that mere watching or downloading of child pornography in private domain is not punishable under the same.

The Just Rights for Children Alliance – a coalition comprising five different NGOs – work in unison against child trafficking, sexual exploitation and other allied causes. The Bachpan Bachao Andolan is a child rights organization working towards protecting children from exploitation.

The bone of contention was the question whether, mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO? The other issues were the scope of Section 15 of the POCSO Act, and the true scope of Section 67B of the Information Technology Act.