Child sexually abusive material (CSAM) refers to material containing sexual image in
any form, of a child who is abused or sexually exploited. Section 67 (B) of IT Act states
that “it is punishable for publishing or transmitting material depicting children in sexually
explicit act, etc. in electronic form.
Child Sexually Abusive Material (CSAM) is any visual depiction of a child engaged in
sexually explicit conduct. This includes images, videos, or computer-generated images
that show a child being sexually abused or exploited.
It’s important to note that the term “child pornography” is often used interchangeably
with CSAM, but many organizations and experts prefer the term “child sexually abusive
material” because it more accurately reflects the underlying crime of child sexual abuse
Key points to remember:
● Child sexual abuse is a serious crime. The production, distribution, and
possession of CSAM are illegal and harmful.
● Children cannot consent to sexual activity. Any depiction of a child engaged
in sexual activity is evidence of abuse.
● CSAM has a devastating impact on victims. The trauma caused by being
sexually abused can have long-lasting effects
Know More about Section 67 (B) of IT Act
■ Section 67B of IT Act, 2000:
Section 67B has five sub-clauses dealing with different aspects such as:
○ (a) talks about publishing or transmitting material depicting children engaged in sexually explicit act or
conduct,
○ (b) deals with acts including downloading of child pornography material,
○ (c) talks about cultivating, enticing or inducing children to [an] online sexually explicit relationship,
children to [an] online sexually explicit relationship,
○ (d) talks about facilitating abuse of children online and sub-clause,
○ (e) talks about recording abuse/a sexually explicit act with children.
■ Section 14 of POCSO Act, 2012:
Sub-section 1 states that Whoever uses a child or children for pornographic purposes shall be punished with
imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event
years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for
second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.
○ Sub-section 2 mentions that Whoever using a child or children for pornographic purposes under sub-section (1),
commits an offence referred to in section 3 or section 5 or section 7 or section 9 by directly participating in such
pornographic acts, shall be punished for the said offences also under section 4, section 6, section 8 and section 10,espectively, in addition to the punishment provided in
sub-section (1)
■ Obscenity Under IPC and BNS
What does obscenity mean?
With regard to the meaning and definition of obscenity, it is difficult togive any precise and particular definition in view of cultural, religious and social diversity in the society. Oxford dictionary defines ‘obscene’
as (of the portrayal or description of sexual matters) offensive or disgusting by accepted standards of morality and decency. It is derived from the French word ‘obscene’ or Latin ‘obscene’.
However, the definition of obscenity is subject to cultures of every country. Evolution of Obscenity Law As early as 4th century, Roman Catholic Church had taken the first move by banning few heretical
works. In 1542 Pope Paul III established the Sacred Congregation of he Roman Inquisition which was vested with the task of suppression of heretical and immoral books. Immoral works also were suppressed in Protestant countries such as england, where, prior to the 18th century, restrictions were applied most exclusively to antireligious or seditious acts or publications, rather than to obscene material in the modern sense. The invention of the printing press sowed the seed of modern obscenity law. There was a wide and easy distribution of sexually explicit material.
By the 17th century, such books and prints had become widely available throughout Europe; governments and church authorities responded by arresting and prosecuting publishers and distributors. The first person to be convicted on a charge of obscenity in England was bookseller Edmund Curl way back in the 1720s.He had published a new edition of Venus in the Cloister; or, The Nun in Her Smock, a mildly pornographic work. His sentence (a fine and one hour in the
pillory) was due to the fact that there was no specific law on the subject matter. Thereafter obscenity was recognized as an indictable misdemeanour under common law. Sale of Obscene Books, etc. Sections 292, 293 and 294 of IPC have been enacted with the ulterior motive to protect and safeguard the public moral by making the sale, etc., of obscene literature and publications in general, and to young persons in particular, a cognizable offence.
“Clause (1) to section 292 states that the publication of a book, pamphlet, paper, writing, drawing, painting, representation, figure, etc., will be deemed obscene, if,-
i. It is lascivious (expressing or causing sexual desire); or
ii. Appeals to the prurient interest (excessive interest in sexual matters);
iii. If its effect, or the effect of any one of the items, tends to deprave and corrupt persons, who are likely to read, see or hear the matter contained in such materials.
Clause (2) to section 292 holds a person liable to punishment if he
a. Sells, lets to hire, distributes, publicly exhibits or puts into circulation, etc., any obscene material,or
b. Imports or exports or conveys any obscene objects for any of the purpose aforesaid;
c. Takes part in or receives profits from business in the course of which he knows or has reason to believe that any such obscene objects were made for any of the aforesaid purposes
d. Advertises or makes known by any means whatsoever that any person is engaged in, or is ready to be engaged in any act which is an offence under this section
e. Offers or attempts to do any act which is an offence under this section”
Section 293 punishes sales, etc., of obscene objects to young persons below the age of 20 years. The offence is cognizable, bailable, non compoundable and triable by any Magistrate. On the other hand, section 294 deals with obscene acts and songs.
The offence u/s 294 is cognizable, bailable, non-compoundable and triable by any Magistrate. In order to constitute an offence u/s 294 following ingredients are to be fulfilled:- • The accused
1.did some act;
2. sang, recited or uttered any song or bailed; • Such an act was obscene; • The act was performed in a public place; and • It caused annoyance to others.
Illustration 1 An Israeli couple after being married the Hindu way at Pushkar, Rajasthan was arrested u/s 294 of IPC for kissing in public. A
fortnight later, a magistrate slapped a fine of Rs. 500/- on the couple for committing an act of indecency. .
Illustration 2
A woman tourist from Finland was booked u/s 294, IPC on the charge of skinny dipping in the Pushkar Lake and streaking on the streets up her hotel.
Constitutional validity of Section 292
The constitutional validity of section 292 was challenged in Ranjit Udeshi v State of. Maharashtra 1965) 1 SCR 65.
The facts of the case are that Ranjit D Udeshi one of the four partners, was the owner of Happy Book Stall. All the four partners were prosecuted for selling Lady Chatterley’s Lover, a book by D. H. Lawrence under section 292.
Udeshi contented that section 292 was in
How to Report Child sexually abusive material (CSAM)
1. Content Report Through Google
https://transparencyreport.google.com/child-sexual-abuse-material/reporting?hl= en
2. Through National Commission for Protection of Child Rights
3. Through Cyber Crime Portal
Take Legal Advice on Child sexually abusive material (CSAM) Connect With Advocate Tabish Ahmad – Cyber Crime Lawyer & Expert Landmark Cases on Child sexually abusive material (CSAM) fringing his fundamental right of freedom of speech and expression guaranteed under article 19(1)(a) of the Constitution. It was held that
article 19(1)(a) of the Constitution is subject to the restrictions enlisted under article 19(2). One of the grounds is public morality and decency.
Section 292 dealing with obscene materials falls within this exception thereby addressing the issue of public decency and morality. Therefore, section 292 is constitutional.
Case Law on Obscenity In Bobby Art International v Om Pal Singh Hoon, AIR 1996 SC 1846. the issue that came up for consideration was whether the film Bandit Queen can be banned on the ground of obscenity.
The child named ‘Phoolan Devi’ was made to marry a man of her father’s age. She was stripped naked and paraded and made to fetch water from the village well under the gaze of the villagers, but no one came to rescue. To avenge herself upon her prosecutors, she joined a daicot’s gang, humiliated and killed twenty Thakurs of the village.
The apex court while allowing the appeal against the judgment of Delhi High court banning the film on the ground of indecency for the public exhibition held that a film that carries the message that social evil is evil cannot be made impermissible and banned for public exhibition for the same.
The scene of nudity and rape as ell the use of expletives were in aid of the theme and intended not to arouse prurient or lascivious thought but revulsion against the perpetrators and pity for the victim.
In K.P. Mohammad’s case, the court held that performance of Cabaret dance devoid of nudity and obscenity according to Indian social standards in hotels and restaurants is not liable to be banned or prevented.
In Ranjit Udeshi v State of Maharashtra (1962), the Supreme Court of India had adopted the Hicklin test.
But in 2014 the Apex Court had explicitly rejected the Hicklin test in the prosecution of the tennis star Boris Becker. The Hon’ble Court had adopted the modern community standards test.
The ratio was obscenity is to be determined by contemporaneous social mores. Mere nudity does not by itself amount to obscenity. The law should change in accordance with social value.
The US Supreme Court has laid down Miller test in order to determine obscenity.
The Miller test for obscenity includes the following criteria:
(1) whether ‘the average person, applying contemporary community standards’ would find that the work, ‘taken as a whole,’ appeals to ‘prurient interest’
(2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and(3) whether the work, ‘taken as a whole,’ lacks serious literary, artistic, political, or scientific value.
Negative Case Laws
Madras High Court decision in S. Harish v. Inspector of Police
n Harish v. Inspector of Police, the Madras High Court (HC) ruled in January 2024 that downloading and viewing child sexual abuse material (CSAM) is not an offense. The case involved a petitioner who was charged with downloading child pornography on his mobile phone. The court found that the forensic
report showed two files of child pornography, and the petitioner admitted to downloading and viewing the content.
