In a significant decision on Monday, 23rd September, the Supreme Court overturned the Madras High Court’s ruling that ‘simply watching child porn’ is not a violation under the POCSO (Protection of Children from Sexual Offences) and Information Technology (IT) acts. The Supreme Court ruled that watching and even possessing child pornographic material constitutes an offense under the POCSO.
The landmark verdict overturned a Madras High Court judgment that had dropped a criminal case against a 28-year-old man accused of downloading and watching pornographic content involving children on his mobile phone. Today, the Supreme Court reinstated the accused’s criminal case and said that the case was being sent back to the session’s court.
“There must be intention on the part of the accused to share such material. To establish offense under 15(3) apart from the storage of child pornographic material it has to be shown that such storage was done to make some gain or advantage and it needs to be seen if that gain or advantage is realized or not,” Justice JB Pardiwala said while delivering the judgment.
Justice JB Pardiwala: the mens rea as under the section has to be determined from the actus rea seeing the manner in which the item was stored, deleted etc. There must be intention on part of the accused to share such material. To constitute an offence under section 15(2) of…
— Bar and Bench (@barandbench) September 23, 2024
The Justice further urged the parliament to make changes in the current POCSO Act, 2012. “We have said on the lingering impact of child pornography on victimization and abuse of children. We have said on the role to report under sections 19 and 21 including the role of society and stakeholders. We have suggested to the parliament to bring an amendment to POCSO so that the definition of child pornography can be referred to as child sexually abusive and exploitative material. We have suggested an ordinance can be brought in,” the court added.
“HC committed error in its order and thus we set aside HC order and remitted the matter back to the sessions court,” the Justice ruled.
Justice JB Pardiwala: HC committed error in its order and thus we set aside HC order and we remit the matter back to the sessions court.
— Bar and Bench (@barandbench) September 23, 2024
CJI: This is a landmark judgment and I thank my brother for this. #SupremeCourt
CJI DY Chandrachud, who was also on the same bench, stated that it is a landmark ruling and the first time in the world that the judiciary has dealt with child sexual exploitative and abuse material in such depth.
The Madras High Court earlier on 11th January had ruled that simply possessing and watching child sexually exploiting material is not an offense if no transfer or distribution has occurred. An FIR was filed for offenses under Section 67-B of the IT Act and Section 14(1) of the Protection of Children from Sexual Crimes Act, 2012 (POCSO) in response to a letter stating that the petitioner had downloaded child pornography onto his phone.
The mobile phone was seized and delivered to the Forensic Science Department for examination, where two files containing child pornographic content were discovered. However, the petitioner claimed that he only downloaded the content for personal use and never shared or sent it to anyone.
The petitioner admitted to having a history and addiction to watching pornography as a teenager. However, he claimed that he had never watched child pornography and indicated his intention to seek counselling to overcome the addiction.
In its conclusion, the Madras HC noted that simply watching child pornography did not constitute a breach of Section 14(1) of POCSO, which required explicit exploitation of children. Furthermore, for an offense under Section 67-B of the IT Act, there must be evidence of publishing, transferring, or making explicit material concerning children, which the petitioner did not do, as per the HC. “Since he has not used a child or children for pornographic purposes, at best, it can only be construed as a moral decay on the part of the accused person,” it added.
However, the Supreme Court today took the opposite, yet correct stance, ruling that failing to report such material to authorities after getting it from any source is an offence.
