§ Child sexual exploitative and abuse material

The Act uses the expression child pornography, and defines it in Section 2(1)(da).

In Just Rights for Children Alliance v. S. Harish, the Supreme Court observed that the expression is misleading, because it suggests a category of pornography, when the material is in truth a record of the sexual abuse and exploitation of a child.

The Court recommended that Parliament amend the Act to substitute the term child sexual exploitative and abuse material, abbreviated CSEAM, and directed courts to use that term in judicial orders and judgments.

These notes use CSEAM where describing the material, and the statutory expression where quoting or referring to the text as it stands.

§ Section 13 (in substance)

Whoever uses a child in any form of media, including a programme or advertisement telecast by television channels or the internet or any other electronic form or printed form, whether or not intended for personal use or for distribution, for the purposes of sexual gratification, which includes —

(a) representation of the sexual organs of a child;

(b) usage of a child engaged in real or simulated sexual acts, with or without penetration;

(c) the indecent or obscene representation of a child,

shall be guilty of the offence of using a child for pornographic purposes.

Explanation. The expression use a child includes involving a child through any medium like print, electronic, computer or any other technology for preparation, production, offering, transmitting, publishing, facilitation and distribution of the pornographic material.

§ The elements, and what the Explanation adds

• Meaning of pornographic purposes. The section defines it by reference to sexual gratification, including the three forms of representation in clauses (a) to (c).

• Any media. Print, television, the internet and any other electronic form are all within it. The medium is irrelevant.

• Personal use is no answer. The words whether or not intended for personal use or for distribution mean that material made for private consumption is covered.

• Representation of sexual organs, clause (a). A depiction of the child's sexual organs for sexual gratification.

• Real or simulated sexual acts, clause (b). The act need not be real; a simulated act, with or without penetration, is enough.

• Indecent or obscene representation, clause (c). A residuary clause for representations of the child that do not fall within (a) or (b).

• The Explanation widens use. It covers every stage of the chain: preparation, production, offering, transmitting, publishing, facilitation and distribution. A person who does not himself photograph a child, but produces, publishes or distributes the material, is within Section 13.

14(1)

Using a child or children for pornographic purposes

Imprisonment of not less than FIVE YEARS, and fine; on a SECOND OR SUBSEQUENT conviction, not less than SEVEN YEARS, and fine

14(2)

Using a child for pornographic purposes and committing an offence under Section 3, 5, 7 or 9 by DIRECTLY PARTICIPATING in the pornographic acts

Punishment under Section 4, 6, 8 or 10 respectively, IN ADDITION to the punishment under Section 14(1)

§ Pornographic use combined with sexual assault

Section 14(2) makes the punishments cumulative. Where the offender not only uses the child for pornographic purposes but also commits penetrative sexual assault, aggravated penetrative sexual assault, sexual assault or aggravated sexual assault by directly participating in the acts, he is punished for that offence as well as under Section 14(1).

The reason is that two distinct wrongs are done: the sexual abuse of the child, and the making of a permanent record of it that can be circulated indefinitely.

Repeat offence. Under Section 14(1), a second or subsequent conviction carries a minimum of seven years in place of five.

15(1)

Storing or possessing CSEAM in any form, and FAILING TO DELETE, DESTROY OR REPORT it to the designated authority

An intention to SHARE OR TRANSMIT it

Fine not less than Rs 5,000; second or subsequent offence, not less than Rs 10,000

15(2)

Storing or possessing CSEAM in any form

For TRANSMITTING, PROPAGATING, DISPLAYING OR DISTRIBUTING it, except for reporting or for use as evidence in court

Imprisonment up to three years, or fine, or both

15(3)

Storing or possessing CSEAM in any form

For a COMMERCIAL PURPOSE

First conviction: three to five years, or fine, or both. Second or subsequent: five to seven years, and fine

§ Why they are three offences, not one

• Each has its own mental element. The same act of storage or possession becomes a different offence depending on what the possessor intends to do with the material.

• They are graded by purpose. Retention without deleting or reporting, with intent to share, is met with a fine; retention for circulation with imprisonment up to three years; retention for gain with the gravest punishment.

• Harish confirmed the structure. The Supreme Court held that each sub-section is an independent offence, so the absence of one element, such as actual transmission, does not dispose of the others.

§ What Harish decided on possession

Possession is not confined to physical custody. It includes constructive possession: the power and the intention to exercise control over the material, even where it is not physically held.

Viewing without downloading can be possession. A person who views CSEAM online and has control over it, being able to view, share, delete or otherwise deal with it, may be in possession of it for the purposes of Section 15, although he has not saved a copy to his device.

Immediate control over digital material is the test. The question is whether the person had the material within his control at the relevant time, not whether he retained a permanent file.

The consequence. The defence that the accused merely watched, and did not store, does not by itself take him outside Section 15.

§ How the elements are proved

• Actus reus. Storage or possession in any form, including constructive possession, and in Section 15(1) the further failure to delete, destroy or report.

• Mens rea. The purpose specified in each sub-section: an intention to share or transmit, a purpose of transmission or distribution, or a commercial purpose.

• Section 30 applies. Once the foundational facts are established, the court presumes the culpable mental state, and the accused must disprove it beyond reasonable doubt.

• Inference from failure. Under Section 15(1), the failure to delete or report, together with the surrounding circumstances, may itself evidence the intention to share.

• Inference of purpose. Under Section 15(2) and (3), purpose may be inferred from the quantity of material, its organisation, the presence of sharing software, payment records, or communications with others.

📖 Just Rights for Children Alliance v. S. Harish, 2024 INSC 716, decided 23 September 2024

The High Court's view. The Madras High Court had quashed proceedings against an accused found to have downloaded and stored CSEAM on his phone, holding that merely downloading and viewing such material in private was not an offence under Section 15 of the POCSO Act or Section 67B of the Information Technology Act.

The Supreme Court reversed it. It held that the High Court had erred, and restored the proceedings.

Three distinct offences. Each sub-section of Section 15 is an independent offence, with its own actus reus and mens rea.

Constructive possession. Possession includes the exercise of control over the material, and viewing it online without downloading can amount to possession where the person has such control.

Failure to delete or report. Under Section 15(1), retaining the material without deleting or reporting it may itself be evidence of the intention to share.

Section 30. The presumption of culpable mental state applies to Section 15 once the foundational facts are established.

Section 67B of the IT Act. It covers not only publishing and transmitting, but also browsing, downloading, collecting and seeking such material.

Terminology. The Court recommended that Parliament replace child pornography with child sexual exploitative and abuse material, and directed courts to use the new term.

Wider measures. It emphasised comprehensive sex education, support for victims and early intervention, and the responsibilities of intermediaries.

§ The position after Harish

Downloading and storing CSEAM places the material in the person's possession, and brings Section 15 into play according to the purpose proved.

Viewing online may amount to constructive possession where the person had control over the material.

Failing to delete or report is the core of Section 15(1). A person who comes across CSEAM must delete or destroy it, or report it through the prescribed channel; retaining it with intention to share is an offence.

Reporting is the safe course. Rule 11 of the POCSO Rules, 2020 prescribes reporting to the Special Juvenile Police Unit, the police, or the cybercrime portal, and the person reporting must not forward the material in doing so.

Subject

Storage or possession of CSEAM, graded by purpose

Publishing, transmitting, creating, collecting, seeking, BROWSING, DOWNLOADING, advertising, exchanging or distributing material depicting children in sexually explicit acts; enticing children into online relationships; facilitating online abuse; recording abuse

Medium

Any form

Electronic form

Punishment

Fine; up to three years; or three to five years, rising to five to seven on repeat

First conviction up to five years and fine up to Rs 10 lakh; subsequent conviction up to seven years and fine up to Rs 10 lakh

Where both apply

Section 42 of POCSO: the punishment greater in degree

§ Proving a Section 15 case

• Seizure and imaging. The device is seized, and a forensic image is taken so that the original is not altered.

• Hash values establish that the copy examined is identical to the original, and the chain of custody must be documented from seizure to examination.

• Admissibility. Electronic records are proved under Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, corresponding to Section 65B of the Indian Evidence Act, with the required certificate where secondary electronic evidence is relied on. In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, the Supreme Court held the certificate mandatory for such evidence.

• Evidence of purpose. Metadata, file paths, sharing software, communications and payment records establish the purpose that distinguishes the three sub-sections.

• Protecting the child. The material is sealed and handled so that the child's identity is not disclosed, consistently with Section 23.

§ The obligations on platforms

Section 20 of POCSO requires personnel of media and similar facilities who come across material sexually exploitative of a child to report it to the police or the Special Juvenile Police Unit.

Section 79 of the IT Act gives intermediaries a safe harbour from liability for third-party content, but only where they observe due diligence and act on actual knowledge. Failure to remove or report CSEAM puts that protection at risk.

The IT (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 require intermediaries to inform users not to host content harmful to children, and require significant social media intermediaries to endeavour to deploy technology-based measures, including automated tools, to proactively identify child sexual abuse material.

In Harish, the Supreme Court drew attention to the reporting obligations of intermediaries and to the need for their effective enforcement.