Downloading, watching child porn offence under POCSO, IT law: SC

In a landmark verdict, the Supreme Court on Monday, 23 September held that watching and downloading child pornography are offences under the POCSO Act and the information technology law.

The apex court suggested Parliament consider amending the term 'child pornography' with "child sexually abusive and exploitative material" by bringing changes in law, and asked the courts not to use the term 'child pornography'.

A bench headed by Chief Justice D Y Chandrachud set aside the Madras High Court ruling that had said mere downloading and watching child pornography was not an offence under the Protection of Children from Sexual Offences (POCSO) Act and Information Technology (IT) Act.

The bench, also comprising Justices J B Pardiwala and Manoj Misra, also laid down certain guidelines on child pornography and its legal consequences.

"We have said about lingering impact of child pornography on victimisation and abuse of children and on role to report an offence, including role of society and stakeholders," the bench said.

"We have suggested to Parliament to bring an amendment to POCSO... so that definition of child pornography can be referred to as 'child sexually abusive and exploitative material'. We have suggested an Ordinance can be brought in," it said.

The top court delivered its verdict on a plea challenging the Madras High Court order.

On 11 January, the high court had quashed the criminal proceedings against a 28-year-old man charged with downloading pornographic content involving children on his mobile phone.

While pronouncing the verdict, the apex court restored the criminal proceedings in the case saying the high court had erred in quashing it. The bench said the sessions court will now deal with the case afresh.

Terming the high court ruling atrocious, the apex court had earlier agreed to hear the plea challenging the high court ruling that had said mere downloading and watching child pornography was not an offence under the Protection of Children from Sexual Offences (POCSO) Act and Information Technology (IT) Act.

The high court had also said that children these days were grappling with the serious issue of watching pornography and instead of punishing them, the society must be "mature enough" to educate them.

The Supreme Court had taken note of the submissions made in the matter by senior advocate H S Phoolka, who represented two petitioner organisations, that the high court verdict was contrary to the laws in this regard.

The senior lawyer appeared in the court on behalf of NGOs Just Rights for Children Alliance, based in Faridabad, and the New Delhi-based Bachpan Bachao Andolan. The organisations work for the welfare of children.

The high court had quashed the criminal case against S Harish under the POCSO Act, 2012 and IT Act, 2000.

In order to constitute an offence under section 67B of the IT Act, an accused must have published, transmitted or created material depicting children in a sexually-explicit act or conduct, it had said.

"A careful reading of this provision does not make watching child pornography, per se, an offence under section 67B of the Information Technology Act, 2000," the high court had added.

Even though the said section of the IT Act has been widely worded, it does not cover a case where a person has merely downloaded child pornography in an electronic gadget and watched the same, without doing anything more, it had said.

Admittedly, two videos involving boys were downloaded and were available on the petitioner's mobile phone, and those were neither published nor transmitted to others and were within the petitioner's private domain, it had said.

The Madras High Court had, however, expressed concern over children watching pornography.

Viewing pornography can have negative consequences on teenagers down the line, affecting both their psychological and physical well-being, it had said.

The high court had advised the petitioner to attend counselling if he was still afflicted with the addiction of watching pornography.