On 19th April, the Supreme Court reserved its decision on an appeal that contested the Madras High Court’s ruling that downloading and possessing child pornography was not illegal under the Protection of Children from Sexual Offences (POCSO) Act. The bench, which consisted of Justice JB Pardiwala and Chief Justice of India DY Chandrachud heard arguments from both sides before reserving its judgement. However, the bench noted, “Watching child porn may not be an offence but children being used in pornography will be an offence and is a matter of serious concern.”
The court added, “Watching pornography may not be an offence, but the High Court has said watching child pornography is also not an offence. A child watching porn may not be an offence, but a child being used in pornography will be an offence. Anyway, we will look into it. We will pass orders.” The NGOs (Non-Governmental Organisations) “Just Right for Children Alliance” and New Delhi-based “Bachpan Bachao Andolan” were presenting a case before the apex court, contesting the verdict of the Madras High Court in the POCSO case pertaining to the downloading of child pornography.
Senior attorney HS Phoolka who was representing the two organisations invoked the POCSO Act and the Information Technology Act. “The POCSO Act says that if any video or photo is there, you need to delete the same. And in this case, the accused was constantly watching the video. He watched it for two years, according to the report of NETMEG. The first video was before the amendment, but the second was after the amendment,” he argued.
“Someone receiving the video on WhatsApp is not an offence,” the CJI questioned in response and Justice Pardiwala further inquired, “Is it an offence to keep the video on his mobile phone for two years?” The respondent’s attorney clarified, “The video in question was auto-downloaded in WhatsApp. This file comes to WhatsApp and is auto-downloaded if the WhatsApp setting is kept on by an individual.”
The highest court highlighted that in order to avoid legal repercussions, such content should be immediately erased or destroyed if it ends up in someone’s inbox. According to applicable laws, failing to do so could constitute an offence under relevant laws. The National Commission for Protection of Child Rights (NCPCR) has been given permission by the Supreme Court to weigh in on the matter and provide written arguments by 22nd April.
The top court was considering the arguments made by the lawyer for the individual who was charged with downloading child pornography that he reportedly received on 14th June 2019. He claimed that the content on his WhatsApp had downloaded on its own.
The bench also looked into the 2019 POCSO Act change. The CJI noted, “After the amendment, this becomes an offence. How can you not know that this video is there on your phone,” after examining the amendment. The court then reserved its decision after hearing arguments from both sides. “Arguments concluded, and judgment reserved,” the court announced.
The Madras High Court determined in January of this year that downloading child pornography does not violate the Information Technology Act or the POCSO because it is done “in privacy without affecting or influencing anyone else.” The case against a 28-year-old man, S Harish charged with downloading child pornographic material to his cellphone was dropped by the High Court.
Just Rights for Children Alliance and Bachpan Bachao Andolan requested the Supreme Court to overturn the ruling of the High Court, contending that it would promote child pornography and be detrimental to children’s welfare. The petition mentioned, “The impression is given to the general public that downloading and possessing child pornography is not an offence, which would increase the demand for child pornography and encourage people to involve innocent children in pornography.”
