Explained: SC's order on using the correct terminology for child pornography
Global law enforcement agencies recognise that the term "child pornography" is beneficial to the offender as it can be used to denote “compliance” by the victim
The Supreme Court recently delivered a significant judgement (Just Rights for Children’s Alliance & Anr. v. S. Harish & Ors., Criminal Appeal Nos. 2161-2162/2024) which expanded the law on possession of child pornographic material while overturning a questionably reasoned judgement of the Madras High Court. The impugned high court judgment had held that mere possession and storage of pornographic material of children without any transmission or publication of the same does not amount to an offence under section 67B of the Information Technology Act, 2000 (“IT Act”) and section 14(1) of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”).
Another related point that the apex court made in its pronouncement which is worthwhile to note is its direction to all courts of the country, forbidding them from using the term ‘child pornography’ and instead using the term ‘child sexual exploitative and abuse material’ (“CSEAM”). Elaborating on the reasoning behind this order, the Supreme Court rightly explained that ‘child pornography’ is a misleading term that underplays the severity of the crime, as the term ‘pornography’ is typically used to connote visual material depicting a consensual sexual relationship between adults, viewed for sexual pleasure. As children lack the capacity to consent to any sexual activity with adults, a term such as pornography that suggests the voluntary participation of a child cannot be condoned.
Instead, the Supreme Court has directed the usage of the term CSEAM in all judicial orders and judgments. CSEAM correctly focuses on the gravity of the offence and clearly places the burden of the conduct on the exploitation and abuse of the child on the perpetrator instead of on the child. The apex court further proposed that Parliament ought to consider bringing about an amendment to the POCSO Act to substitute the term ‘child pornography’ with CSEAM to underscore the gravity of sexual offences committed against children. It was also suggested that the government may consider the route of an ordinance for the proposed amendment to the POCSO Act.
Language is important, and it matters even more so in statutes, judicial orders, and judgments. Public perception of crime and victimisation often hinges on how it is described by courts and the media. Hence, when news and media organisations choose to report on say, for instance, a sexual abuse case involving a minor by labelling it a ‘sex scandal’ it has real-world ramifications on how the victim is viewed by society at large. Therefore, statutory language and language used by the judiciary ought to be cognizant of the harms that incorrect and insensitive language can perpetuate.
The direction of the apex court is laudable and a step in the right direction. It is important for statutory definitions and judicial interpretation to correctly and comprehensively capture the nature of the criminal act. Thus, in this context, labelling criminal acts in a way that accurately describes the nature and degree of the crime assumes great importance. This concept is known as the fair labelling principle in criminal law.
The principle of fair labelling advocates for fairly representing the wrong committed by the perpetrator by labelling it in a just manner that accurately captures the harm inflicted by the accused person on the victim. Therefore, the principle of fair labelling is significant in communicating to a layman the heinousness of the crime and preventing any blame or insinuation of consent on the part of the child, which the term ‘child pornography’ fails to do.
A fair label also helps to impart important information about the crime that has been committed such as to establish societal disapproval regarding the offence and indicate proportionality of the response of the criminal justice system vis-à-vis the offence. The principle is not new under Indian jurisprudence and has previously been used in the context of rape and sexual assault laws. Specifically speaking, it has been used in arguments during litigation regarding the constitutionality of the marital rape exception under Indian criminal law at the Delhi High Court in RIT Foundation v. Union of India (2022).
At the international level as well, the term child pornography has been criticised as problematic by several experts. The lack of consensus on the definition of the terms “pornography” and even “child” further complicates the matter and has led to varying definitions of these terms in different parts of the world. In 2015, in its resolution on child sexual abuse online, the European Parliament stressed that it was crucial to use the correct terminology for offences committed against children, “including the description of images of sexual abuse of children, and to use the appropriate term ‘child sexual abuse material’ rather than ‘child pornography’”.
The Terminology Guidelines for the Protection of Children from Sexual Exploitation and Sexual Abuse that were adopted in 2016, also known as the Luxembourg Guidelines (“Guidelines”) compiled by leading international organisations having expertise in child rights have similarly recommended moving away from the term ‘child pornography’. The Guidelines suggest best practices regarding terminology to be used in matters of crimes committed against children, recommend using ‘child sexual abuse material’ and urge that ‘child pornography’ be avoided in its entirety.
International law enforcement agencies such as Interpol and Europol have followed suit, acknowledged that the term ‘child pornography’ is actually beneficial to the offender as it can be used to denote “legitimacy and compliance” by the victim and recommended the discontinuation of the term. Thus, among law enforcement, judicial, and academic circles, there is an increasing concurrence that ‘child pornography’ does not sufficiently convey the seriousness of the crime that the victim has been subjected to and, in fact, minimises it.
Appropriately descriptive terms that accurately convey to non-experts the extent of the graveness of the crime committed against children are vital. Properly understanding the crime that has been committed and its implications on the victim is one of the first steps to ensuring justice and preventing the revictimization of the child in question. The direction by the apex court in this regard to all courts and the suggestion that appropriate amendment to the law is made would bring India in line with international best practices and recommendations by experts.
Children comprise one of the most vulnerable sections of society. In a country where sexual assault is shrouded in social stigma and shame, this direction is heartening as it will help in making certain that serious sexual crimes committed against a child are not trivialised, and their magnitude is not lost to the public at large. Hopefully, India’s Parliament and the police will follow suit in changing the law and ensuring the usage of the correct terminology in a manner that protects children and safeguards their dignity.
Avanti Deshpande is a lawyer and researcher. Her interests include human rights law, criminal law, and gender justice. The views expressed are personal
