Watching Child Pornography is Crime u/ POCSO: Supreme Court Ruled

India is one of the youngest nations in the world, with a large population of children. That is why ensuring children's safety is a top priority. But sadly, many of them are exposed to most horrific crimes like sexual abuse. 

Child pornography, in particular, is one of the worst forms of this abuse—it harms not just the child but also society. NCRB 2021 report shows a rise in these cases, with incidents increasing from 738 (2020) to 969 (2021).

The Supreme Court recently made its landmark judgement, titled Just Rights For Children Alliance Vs. S. Harish Diary No.- 8562 - 2024, ruled that even watching or possessing (storing) child pornography is an offence punishable under the law. This judgment takes a stricter stand on protecting children and includes important recommendations to strengthen the law related to child sexual abuse.

Read on to understand why this ruling matters and what it means for child protection in India.

What is Child Pornography? 

Before understanding this judgement, know what are key terms and provisions related to the Child Pornography Offences

• Child Pornography is any visual depiction of sexually explicit conduct involving a child, which includes photographs, videos, and digital or computer-generated images.

• Sections 14 and 15 of the Protection of Children from Sexual Offences Act 2012 (POCSO) provide for the use of children for pornographic purposes and the possession of pornographic material involving a child.

  • Possession – Storage/ viewing child pornographic material.

  • Non-Reporting –Failure to report child pornographic material to the responsible authority is also a punishable offence.

  • Transmission - Transmitting/ propagating/ displaying/ distributing child pornographic material.

  • Commercial purpose – Possessing pornographic material in any form involving a child for commercial purposes.

“Section 14 of POCSO: Punishment for using a child for pornographic purposes.”

"Section 15 of POCSO: Punishment for storage of pornographic material involving the child.-"

• Section 67B of the Information Technology (IT) Act 2000 also penalises the use, transmission and publication of obscene materials and browsing, creation, collection, online facilitation or enticement of children into any sexual act or conduct of an offence.

Background of the Case 

In January 2020, an FIR was registered against an accused in All Women's Police Station, Chennai, TN, for the offence punishable under Section(s) 67B of the IT Act 2000 and 14(1) of the POCSO Act 2012. 

During the investigation, the mobile phone was seized from the accused, and a Forensic analysis was conducted, which confirmed that the mobile phone had two files which contained child pornography content involving teen boys. 

The court took cognizance of the offence under Section 67B of the IT Act and Section 14(1) of the POCSO Act. The accused went to the Madras High Court to dismiss the criminal proceedings.

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Madras High Court's Decision 

The Madras High Court, in its decision, said the accused had only downloaded the material for private viewing; it was not published or transmitted, and mere downloading and watching child pornography is not an offence under Section 67-B of the Information Technology Act, 2000. 

The High Court, in its reasoning, said that to attract the offences under the POCSO Act, a child/ children must have been used for pornography purposes. In the present case, the court noted that the accused had watched pornography videos but had not used a child/children for pornographic purposes. In the court's view, this could only be seen as a moral failing on the part of the accused.

Madras High Court's Decision Challenged

After the Madras High Court's judgement, an NGO named Just Rights for Children Alliance and other child rights organisations approached the Supreme Court against the High Court's decision, raising concerns about how this judgment can socially impact normalising child pornography.

The NGOs expressed concerns that the order could encourage child pornography by making people think they won't be punished for downloading and possessing such material. They highlighted the potential harm to innocent children and how it could negatively impact child welfare.

Key Issues of the Case 

I. Whether mere viewing, possessing or storing of any child pornographic material is punishable under the POCSO? 

II. What is the true scope of Section 67B of the IT Act and Section 15 of the POCSO Act? 

Judgement: Just Rights For Children Alliance Vs. S. Harish Diary No.- 8562 - 2024

The Supreme Court bench comprising CJI DY Chandrachud and Justice JB Pardiwala overturned a Madras High Court judgment that stated simply storing child pornographic material without the intention to transmit it was not an offence under the POCSO Act 2012. The Supreme Court, in its decision on the offence of storing child pornographic material, ruled that:-

1. Expand the Definition of "Possession": Watching child pornography on the internet without downloading would also amount to "possession" of such material under Section 15 of the POCSO Act.

2. Intention to Share: Keeping such material without deleting or reporting it suggests an intention to transmit is an offence under the POCSO. Also, just because the material was deleted before FIR registration, it cannot be said that no offence was committed. 

3. Subsecs of 15 (POCSO) are Distinct: The Court held that sub-sections (1), (2) and (3) of Section 15 are independent of each other. If a case does not fall within one sub-section, that does not mean that it does not fall within the entire Section 15.

4. Error by HC: The High Court made an "egregious error" in dismissing the criminal proceedings. The SC held that the accused's failure to delete, destroy, or report the material in the present case established the foundational facts necessary to invoke the statutory presumption of culpable mental state prima facie.

5. CSEAM: All Courts are directed not to use the term 'Child Pornography' in their judgments but rather "child sexual exploitative and abuse material" (CSEAM). Because “CSEAM” better represents the seriousness of crime against them. 

Using "child pornography" downplays the seriousness of the act because it suggests a consensual sexual act between adults, which is not the case with children.

6. The doctrine of Constructive Possession: The judgement applied this doctrine, which allows for the concept of possession to include situations where a person can control something, even if it's not in their physical possession. 

The Court stated that any form of constructive possession of child pornographic material counts as "possession" under Section 15 of the POCSO Act. It clarified that failing to report such material when in constructive possession constitutes the necessary act for prosecution under the law, regardless of physical storage.

Suggestions by the SC

1. Amendments to POCSO: The Court suggested that the Government consider amending POCSO and other relevant legislation to formally replace the term “child pornography” with CSEAM to reflect the nature of the crime better.

2. Public Awareness Campaigns: The Court urged the government to launch awareness campaigns about the legal consequences of engaging with child exploitation material. The campaigns should focus on educating the public about the importance of reporting such material rather than passively consuming it.

3. Victim and Offender Rehabilitation: The judgment stressed the need for rehabilitation programs for both victims and offenders. For offenders, this includes educational programs on the legal and moral implications of their actions. For victims, therapy and support programs should be strengthened to aid recovery from the trauma of exploitation.

Conclusion

The Supreme Court's ruling is a landmark step in India's legal fight against child sexual exploitation, particularly in the online sphere. By expanding the definition of possession and shifting the focus from mere physical storage to constructive possession, the Court has ensured that even the passive consumption of CSEAM is treated as a serious offence. Moreover, the use of the term CSEAM instead of "child pornography" sends a strong message about the need to address child exploitation in a more focused and sensitive manner.

Remember: Any incident involving child sex abuse or child pornography should be reported to the local police or on the portal www.cybercrime.gov.in. The portal can be used to report anonymously as well as through registration