Editorial 1: A blueprint for safeguarding children

Context

A recent Supreme Court ruling reframes the watching and downloading of child porn as a serious crime, rather than an adult indulgence

Introduction

The historic judgment against the online sexual abuse of children, pronounced by the Supreme Court of India in a petition filed by the Just Rights for Children Alliance, will have a long lasting and global impact on society, crime, and child rights.

Ruling by Madras High Court (January 2024)

In January 2024, the Madras High Court had ruled that “merely” downloading or watching child pornography is not a crime, and quashed a case against a 28-year-old man.
This ruling not only defeated the spirit of the Protection of Children from Sexual Offences (POCSO) Act, 2012, but also risked normalising the exploitation of children.

Supreme Court intervention (September 2024)

SC’s Corrections: On September 23, the Supreme Court corrected this grave oversight.
Change in the terms and meanings by SC: It was not only just in expanding the understanding and scope of the crime by making downloading and storage of such material an offence, but also mandated a comprehensive framework to combat Child Sexual Exploitative and Abuse Material (CSEAM) and placed strict responsibilities on social media intermediaries to comply with Indian law.
Reframing the issue: By shifting the language from child porn to CSEAM, the ruling reframes the issue as a serious crime, rather than an adult indulgence.
- It further establishes that individuals who search for or download such material create a demand-supply chain that fuels the rape and exploitation of children.
The perpetuity of this crime is alarming, as these images persist online, subjecting children and families to continuous re-victimisation long after the abuse.
- Even more troubling is that many children are unaware that they have been victimised, as their images are circulated in secrecy.

Measures required

While this mandate is a significant victory, it is just the beginning.

Need for comprehensive measures: To fully realise its impact, the government must implement a comprehensive set of measures to ensure the safety and rehabilitation of children.
- Current approaches largely focus on punishing those in possession of CSEAM, while the child victims behind these images often remain without support.
- A globally coordinated, preventive, and protective framework is urgently needed — one that not only targets offenders, but also addresses the ecosystem and the evolving nature of child exploitation.

Steps needed to tackle the issue

Defining Cybercrime: cybercrime should be explicitly defined in Indian laws and CSEAM should be brought within its ambit as an economic and organised crime
Addressing emerging crimes: Emerging crimes, such as enticement through electronic or digital means, and the resulting trafficking for both forced labour and sexual exploitation need to be explicitly outlawed.
Impact of AI on child exploitation: The rise of AI-generated child sexual abuse material makes the situation worse as it blurs the line between real and synthetic images, making it difficult for authorities to deliver justice.
Need for legal amendments: Legal amendments are required to treat the creation of CSEAM, including AI-generated deep fakes, as equivalent to real child abuse.
- Without swift action, AI-driven exploitation will pose an even greater threat to children.
Social media platforms must be held accountable for reporting CSEAM in real-time to law enforcement. The judgment has mandated that intermediaries report such content to local police and authorities.

India should establish an institutional framework in the form of a forensic lab equipped with cutting-edge technology to respond to the increase in reporting of CSEAM by intermediaries and social media companies.
- Currently, international agencies, such as Interpol, flag Indian IP addresses to the National Crime Records Bureau, which then passes this information to state authorities.
- A domestic lab would reduce response time by allowing India to flag suspicious activity locally and share real-time alerts within Indian and foreign authorities.
Capturing the details: of individuals prosecuted for searching or downloading CSEAM should be entered into the National Database on Sexual Offenders and barred from employment in sectors involving children.

A border-less response

Most importantly, a border-less crime requires a border-less response.
The United Nations Summit of the Future 2024 missed a critical opportunity to address emerging crimes against children.
CSEAM is a multibillion-dollar global industry, accelerated by technological advancements. The world must unite to end this crime.
To combat CSEAM effectively, we need a legally binding international convention.

Way forward

Streamlining cooperation: By streamlining cooperation between law enforcement, governments, and stakeholders, we can enable targeted interventions to dismantle these networks and protect vulnerable children.
Establishing an International database: Establishing an International Database of Sex Offenders could be a critical step in this direction.
Role of financial institutions: Financial institutions also play a crucial role in tracking and disrupting the money trails sustaining these networks.
Need for coordinated global action: Without coordinated global action and financial accountability, dismantling these systems will remain elusive
Imperative for an International Convention: an international convention binding state and non-state actors is imperative to ensure a coordinated response against the economics of this crime.
- This includes the identification of perpetrators, their networks, and the rehabilitation of child victims.

Conclusion

This is a watershed moment, offering a blueprint for how nations can take bold and decisive action to safeguard children. When fully implemented, it has the potential to not only transform India’s approach but also set a powerful global precedent in the fight against child exploitation.

Editorial 2: Ensuring a proper social safety net for the gig worker

Context

Defining ‘employment relation’ in gig work is the key.

Introduction

The Union Ministry of Labour and Employment is drafting a national law to incorporate gig workers into social security schemes, offering benefits such as health insurance and retirement savings. The government is expected to require aggregators to contribute 1%-2% of their revenue to establish a social security fund, which would provide health insurance and other benefits. The government is also revising the definitions of gig and migrant workers to make them more inclusive and reflective of current employment realities.

Overview of the proposed legislation

Registration: It mandates the registration of all gig workers and requires aggregators to, with valid reasons before termination, while ensuring transparency in automated systems.
Resolutions: Dispute resolution mechanisms will also be introduced to protect gig workers’ rights.
Role of aggregators: The Labour Minister also pointed out that aggregator companies that employ gig and platform workers will be asked to take the lead in registering their workers on the portal.
Portal details: Workers registered on the Labour Ministry’s e-Shram portal are eligible for life and accidental insurance, along with other benefits.

Labour codes

Background on labour codes: In this context, it can be mentioned that India formulated four new labour codes in 2019 and 2020.
- o These codes essentially simplified and rationalised existing labour laws and enabled 29 central labour laws to be merged into four broad codes: namely,
- o wage, social security, industrial relations, and occupational safety, health, and working conditions.
Inclusion of Gig and platform workers: The only code where gig and platform workers found mention is the Social Security Code 2020.
- o In this code, gig and platform workers are perceived as a subset of informal sector workers.
Provisions for social security: Accordingly, the said code provided for the formulation of social security schemes for gig and platform workers by the central government.
- o Further, like informal workers, gig workers ought to register themselves under the e-Shram portal through self-declaration.

Worker definition

The issue arises from the definition of gig workers in the Social Security Code 2020, which places them outside the traditional employer-employee relationship.
This is problematic since many gig employers, as in some of the well-known companies, operate as formal entities within the formal sector.
The exclusion of gig workers from the traditional employment framework is the crux of the problem.

Ambiguity in employment relations

Demystifying relations: It is a deliberate ploy on the part of the “aggregator” to demystify employment relations in gig and platform economies such that the application of existing labour laws get pre-empted.
Ambiguity: In a gig economy, employment relations remain ambiguous and workers are categorised as independent workers or contractors.
Misconceptions and deception: Such camouflaging of employment relations leads to the misconception that the gig worker is an independent worker.
- The Social Security Code 2020 accepts this deception and includes gig workers as part of the informal sector.
- The Code does not decipher the real employment relation in the gig and employment economy.

Differences in social security coverage

Also, there is a huge difference in terms of entitlement between institutional social security and social security schemes.
- For example, formal workers get 26 weeks of paid leave along with job security for the entire period of maternity under the Maternity Benefit Act, 1961. This is part of institutional social security coverage.
Under social security schemes, for maternity benefits, there is a cash benefit such as ₹5,000-₹10,000 given to registered informal workers.
The gap between an institutional social security and a social security scheme in terms of entitlement is very clearly evident.

Limitations of the Social Security Code 2020

The Social Security Code 2020: sets to provide gig workers with only certain social security schemes but not institutional social security.
Institutional protection: forms such as minimum wage protection are missing for gig workers.
Lack of safety standards: Occupational safety and health regulations do not apply for gig workers.
No inclusion: Gig workers are not included under the Industrial Relations Code 2020 and are not covered under the dispute resolution mechanism provided thereunder.

Need for clear employment relation definition

The cornerstone of protection under labour laws is the explicit employment relation.
This is what is not defined for gig work in the Indian context.
Pieces of legislation introduced in recent times in States such as Rajasthan and Karnataka also suffer from this particular lacunae.

The core issue

Defining the employer -employee relationship: If the Union Ministry of Labour and Employment is serious about protecting the interests of an ever increasing number of gig workers in the country,
- it should define the employment relation in gig and platform in an explicit manner.
Remove the veil created by so-called “aggregators”: By recognising “aggregators” as employer and reclaiming explicit employment relation in gig work is the key factor.
Supporting cases: An important precedent here is the ruling by the U.K. Supreme Court on the Uber case in 2021 — Uber was deemed to be an employer, Uber drivers as “workers” and Uber asked to honour the prevailing labour laws of the land.