Quashing the Madras High Court order, the Supreme Court on Monday held that watching and downloading child pornography are offences under the POCSO Act and the information technology law. SC suggested Parliament to 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’.
The bench comprising Chief Justice DY Chandrachud, Justices JB Pardiwala and Manoj Misra 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 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.
Justice Pardiwala, who penned a 200-page verdict for the bench, said laws must be robust and strictly enforced to ensure that perpetrators are brought to justice and that children are protected from further harm. “It is important to recognise that each case of what is traditionally termed ‘child pornography’ involves the actual abuse of a child. The use of the term ‘child pornography’ can lead to a trivialisation of the crime, as pornography is often seen as a consensual act between adults,” the bench said.
On January 11, 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 Supreme 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 Supreme 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.
“We direct the Registry to send one copy each of this judgment to the Principal Secretary, Ministry of Law & Justice, Union of India and to the Principal Secretary, Ministry of Women and Child Development, Union of India, for undertaking appropriate course of action,” said the judgment.
The Supreme Court had taken note of the arguments made in the matter by senior advocate HS 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.
Madras High Court had said 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. 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, said the High Court by quashing the criminal case. The High Court had advised the petitioner to attend counselling if he was still afflicted with the addiction of watching pornography.
