Supreme Court: Storing or Watching Child Pornography is an Offense Under POCSO Act, IT Law

NEW DELHI: The Supreme Court ruled on Monday that watching or possession of child pornography is a crime under the Protection of Children from Sexual Offences (POCSO) Act.

 A three-judge bench of the Supreme Court, led by Chief Justice of India D Y Chandrachud and comprising Justices J B Pardiwala and Manoj Misra, overturned an order passed by the Madras High Court.

The High Court had held that merely downloading or viewing child pornography on an electronic device did not constitute an offense under the POCSO and IT Acts.  The Supreme Court disagreed, declaring the judgement of the High Court wrong and sending it back to the sessions court for redeliberation.

In the said judgment, the court further held that mere storage of child pornographic material would not constitute an offense under Section 15(3) of the POCSO Act unless it is proved that such act was done with some intent to gain some benefit or advantage therefrom.

The Supreme Court suo motu suggested in its judgment that the Parliament enact an ordinance to replace the term "child pornography" with "Child Sexual Exploitative and Abuse Material (CSEAM)." In further judgments, the courts in India were directed to desist from using the term "child pornography" in their orders and verdicts henceforth.

Justice Pardiwala, speaking for the bench, said that prima facie evidence for the offense under Section 15(2) of the POCSO Act will have to exist that actual transmission or distribution of material, facilitation of such transmission, preparation or setup to enable transmission is present, with certain directions and suggestions.

A three-judge bench in the Supreme Court, headed by the Chief Justice of India, had reserved its verdict on April 19. In a hearing in March, the Supreme Court had termed the order of the Madras High Court as "atrocious" and agreed to hear an appeal against the High Court's order; it had said merely downloading or streaming child pornography does not amount to an offense under the POCSO and IT Acts.

The High Court had, on January 11, quashed a criminal case against a 28-year-old man S. Harish for his charges of illegal downloading and viewing child pornography on his mobile phone.

The High Court quashed a criminal case under its prerogative of withdrawing the criminal case filed against S. Harish with charges of illegal downloading and viewing of child pornography through his mobile phone, as governed by the POCSO Act, 2012 and the IT Act, 2000.

On the facts, the court relieved Harish with the holding that to make out an offense under Section 67-B of the IT Act, it was required that the accused publish, transmit or create material showing children engaged in sexually explicit acts. A closer reading of the provision would show that seeing child pornography itself is not within that section as an offense. However, the High Court did express grave reservations on the issue of child abuse in pornography and also to the act of its viewing.

The NGO Just Right for Children Alliance has appealed this judgment and filed an appeal before the Supreme Court. They filed a case, seeking cancellation of the order passed by the High Court and appropriate action against the accused, Harish.

It was at one of the hearings that the bench headed by Chandrachud said: "If downloading and watching child pornography is not a crime, use of children in pornography is a crime".

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