The recent decision by the Supreme Court in the Just Rights for Children Alliance (2024) case holds phenomenal significance in this digital age. It is painfully true that children are increasingly falling prey to all forms of electronic media content. Physical and mental abuse have always been prevalent in society in overt and covert forms. However, in this digital age, the abuse has acquired multifaceted dimensions.
Especially, the obnoxious urge among certain people to view child sexual exploitative and abusive material (CSEAM) has made the victimisation of children more dominant.
With potential questions on the right to privacy in the background, the issue on pornography has always been whether such viewing is an immoral act per se or permissible under certain closed-door conditions. In Just Rights for Children Alliance, on the issue of electronic child pornographic content, the Supreme Court held that the mere storage or possession of pornographic material involving a child, when done with a specific intent, is an offence without requiring any actual transmission or dissemination and is violative of the POCSO Act read with Section 67B of the Information Technology (Amendment) Act, 2008.
The POCSO Act seeks to safeguard the rights of children in all situations of actual or potential abuse. While Section 15 of the Act lists the cases where a person can be held allegedly guilty for dealing with CSEAM, Section 30 presumes a culpable state of mind on the part of the alleged offender. On the other hand, Section 67B of the IT Act criminalises any act of transmission of obscene material involving children.
In Just Rights for Children Alliance, the top court reiterated the view in the Sharat Babu Digumarti case that sections 67/67A/67B of the IT Act make a complete code and gave these provisions a purposive interpretation in order to impede at a nascent stage any visible form of child sexual abuse through electronic mediums. The court held that Section 67B of the IT Act not only prohibits dissemination of obscene material but also its creation, possession, propagation and consumption, as well as various direct and indirect acts of online sexual denigration.
So, the top court has read together the POCSO Act and Section 67B of the IT Act and taken a firm stand against CSEAM. There is no reason why this determinative stand cannot be extended to easily available audio-video adult pornographic content on the internet.
Any type of pornographic content belittles human dignity, besides being obscene by its very nature. Obscenity, as opposed to vulgarity and profanity, relates to material that arouses sexual thoughts. The standard to determine obscenity took a marked shift when the SC in Aveek Sarkar vs West Bengal discarded the Hicklin test (a legal test for obscenity established by an English case in 1868), as approved in Ranjit D Udeshi vs Maharashtra, instead adopting the community standard test.
While the Hicklin test considered the susceptibility of persons whose minds are likely to get depraved or corrupt with the purported obscene material, as per the community standard test, the touchstone of determination has to be “contemporary mores and national standards and not the standard of a group of susceptible or sensitive persons.”
In this digital era, free and easily accessible sexually explicit content on the internet involving women and children is a contemporary social reality. However, by any stretch of imagination, such content cannot set a national standard. It is also well documented that women and children are often trapped into participating in such content that is not only sexually abusive but also violates bodily integrity. In addition, any kind of pornographic content on the internet that has the potential to be widely viewed, heard, stored and shared, cannot pass the muster of natural rights that lay a premium on human dignity.
Any contemporary practice, even if viewed with the lens of rights such as the ‘right to privacy’ or the ‘right to view in private’, cannot be stretched to include visuals that cause a debilitating impact on the participants.
Law is an agent of social change, whether statutory or judge-made. With the proliferation of digital content, it is time the ‘community standard test’ as developed in Aveek Sarkar is critically evaluated once again so that human dignity of persons of all age groups are protected from the perils of digitisation.
There cannot exist any substantive right in respect of any act that violates human dignity besides normalising toxic contemporary mores. In this context, reasonable restrictions in the creation, storage, transmission and depiction of audio-video pornographic content in the electronic medium is crucial. Involvement of all stakeholders, including the intermediaries that host these types of content, must be ensured so as to reduce their accessibility to the public.
Statutes like POCSO, IT Act or the Indecent Representation of Women (Prohibition) Act of 1986, which criminalises the indecent illustration of women, can provide the necessary legal support.
Rights theorists like Ronald Dworkin correctly perceive rights, self-respect and dignity as interrelated. To respect people as ends in themselves and to view them as having basic human dignity form the essence of natural rights. Their best interests cannot be overridden only to honour the apparent abhorrent choices of a few or even in the garb of creating distress employment opportunities for the participants.
As human dignity and bodily integrity are severely compromised in pornographic content, the Just Rights for Children Alliance decision showed the path to stem such abominable practices in society.
Erina Chatterjee
Judge, West Bengal Judicial Service
(Views are personal)