Supreme Court issues notice on petition challenging Kerala HC verdict on possession of child pornography

The Supreme Court of India has issued a notice in a petition filed by Just Rights For Children Alliance challenging an order of the Kerala High Court that merely storing and possessing child pornography material on a phone does not constitute a violation of the Protection of Children from Sexual Offences Act (POCSO) or the Information Technology Act.

The bench headed by Chief Justice of India DY Chandrachud and comprising Justice JB Pardiwala and Justice Manoj Misra, while hearing the petition, referred to a similar judgment of the Madras High Court, in which the Supreme Court had held that watching child pornography per se does not constitute a criminal offence.

CJI referred to the judgment and submitted that the reserved judgment of the Madras High Court could also have an impact on the present case. He requested the petitioner to await the judgment.

In June 2024, the Kerala High Court acquitted 27-year-old Sebin Thomas for downloading, storing and possessing child pornography material on his mobile phone. The Supreme Court held that automatic or unintentional downloading of images of children engaged in sexually explicit acts or conduct does not constitute an offence under the POCSO or IT Acts.

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Just Rights for Children Alliance, a coalition of over 120 NGOs working across India against child sexual exploitation, child trafficking and child marriage, said in its petition: “The impugned order, which was widely reported in the media, gave the impression that persons downloading and possessing child pornography will not be prosecuted. This will encourage child pornography and would be against the welfare of children.”

Speaking about the recent orders of the Supreme Court in child pornography cases, Ravi Kant, Convenor, Just Rights for Children Alliance, said, “It is disturbing how the honourable High Courts in multiple states have given confusing verdicts on such a serious crime as child pornography. The message to those who indulge in this act in any manner should be very clear and very stern. The scenario is already alarming with the increase in searching and downloading of child sexual abuse material and we need urgent attention and action on this issue.”

Senior advocate HS Phoolka, appearing for the petitioner, informed the court that the Kerala Police has found that several local children in the age group of 8-10 and 15-16 years were involved in the objectionable sexual videos. The accused was arrested during Operation P-Hunt, a special drive by the Countering Child Sexual Exploitation (CCSE) team of the Kerala Police, operating under Cyberdome to tackle crimes against children.

The applicant also alleged an annual increase in the percentage of child pornography cases from 2018 to 2022. According to data from the National Crime Records Bureau, the increase in the past four years was nearly 2,561 percent.