Downloading and viewing child pornography punishable under POCSO, IT Act: SC

In a landmark judgment, the Supreme Court on Monday held that viewing and downloading child pornography is an offence under the POCSO Act and the Information Technology Act.

The Supreme Court suggested to Parliament that the term “child pornography” should be amended to mean “sexually abusive and exploitative child abuse material” and asked the courts not to use the term “child pornography”.

A bench headed by Chief Justice DY Chandrachud set aside the Madras High Court's judgment that mere downloading and viewing of child pornography did not constitute an offence under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act.

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

“We have discussed the ongoing impact of child pornography on the victimisation and abuse of children and on the role in reporting crime, including the role of society and advocacy groups,” the court said.

“We have suggested to Parliament to propose an amendment to the POCSO… so that the definition of child pornography can be changed to 'material containing sexual abuse and exploitation of children'. We have suggested to bring an ordinance to this effect,” it said.

The Supreme Court delivered its verdict on an appeal against the decision of the Madras High Court.

On January 11, the Supreme Court dropped criminal proceedings against a 28-year-old man accused of downloading pornographic content featuring children onto his mobile phone.

In delivering the verdict, the Supreme Court reinstated the criminal proceedings in the case, saying that the High Court had erred in overturning the verdict. The court said the District Court would now rehear the case.

The Supreme Court had termed the High Court's verdict as cruel and had earlier agreed to hear the plea challenging the Supreme Court's verdict. According to the verdict, mere downloading and viewing of child pornography does not constitute an offence under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act.

The Supreme Court had also stated that children today are facing the serious problem of consuming pornography and that instead of punishing them, society must be “mature enough” to educate them.

The Supreme Court had taken note of the submissions of senior advocate HS Phoolka, representing two petitioner organisations, that the Supreme Court judgment in this regard was contrary to law.

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

The Supreme Court had quashed the criminal proceedings against S. Harish under the POCSO Act, 2012 and the IT Act, 2000.

To commit an offence under Section 67B of the IT Act, an accused must have published, transmitted or created material depicting children engaging in a sexually explicit act or behaviour, it said.

“A careful reading of this provision does not per se make viewing of child pornography an offence under Section 67B of the Information Technology Act, 2000,” the Supreme Court added.

Even though the said section of the IT Act is broadly drafted, it does not cover the case where a person merely downloads and views child pornography on an electronic device without doing anything else, it said.

Although two videos featuring boys were downloaded and available on the petitioner's mobile phone, they were neither published nor passed on to third parties and were in the petitioner's private area, it was said.

However, the Madras High Court had expressed concern about children viewing pornography.

Viewing pornography can have negative consequences for young people later in life and affect both their mental and physical well-being, it was said.

The Supreme Court had advised the plaintiff to seek counseling if he continued to suffer from his addiction to pornography.