SC quashes Madras HC decision which held that ‘simply watching child pornography is not an offence’

In a landmark decision on Monday, September 23, the Supreme Court quashed the Madras High Court’s ruling that ‘mere viewing of child pornography’ is not a violation of the Protection of Children from Sexual Offences (POCSO) and Information Technology (IT) Acts. The Supreme Court held that viewing and even possessing child pornographic material is a violation of the POCSO.

The landmark verdict overturned a Madras High Court order that had dropped a criminal case against a 28-year-old man accused of downloading and watching pornographic content featuring children on his mobile phone. Today, the Supreme Court reinstated the accused’s criminal case and said the case be remanded to the sessions court.

“There must be an intention on the part of the accused to share such material. To establish an offence under 15(3), apart from storage of child pornographic material, it has to be shown that such storage was done for some benefit or gain and it has to be seen whether that benefit or gain was realised or not,” Justice JB Pardiwala said while delivering the verdict.

Justice JB Pardiwala: The mens rea as under the section has to be determined on the basis of the actus rea, having regard to the manner in which the item was stored, disposed of etc. There must be an intention on part of the accused to share such material. To constitute an offence under section 15(2) of…

— Bar and Bank (@barandbench) September 23, 2024

The judge further urged Parliament to bring amendments in the existing POCSO Act, 2012. “We have discussed the continuing impact of child pornography on victimisation and abuse of children. We have discussed the role of reporting under sections 19 and 21 including the role of society and stakeholders. We have suggested Parliament to bring an amendment to POCSO so that the definition of child pornography can be termed as child sexually abusive and exploitative material. We have suggested that an ordinance may be brought,” the court added.

“HC made an error in its order and therefore we set aside HC’s order and remand the case to the trial court,” the judge ruled.

Justice JB Pardiwala: The Supreme Court has erred in its order. Therefore, we quash the order of the Supreme Court and remand the matter to the sessions court.

CJI: This is a groundbreaking ruling and I am grateful to my brother for that. #Supreme Court

— Bar and Bank (@barandbench) September 23, 2024

CJI DY Chandrachud, who was also sitting on the same bench, said it was a landmark judgment and the first time in the world that the judiciary has dealt with child sexual abuse and exploitation material in such depth.

The Madras High Court had earlier on January 11 ruled that mere possession and viewing of child pornography material does not amount to an offence if there has been no transmission or distribution. An FIR was lodged for offences under Section 67-B of the IT Act and Section 14(1) of the Protection of Children from Sexual Crimes Act, 2012 (POCSO) in response to a letter stating that the petitioner had downloaded child pornography on his phone.

The mobile phone was seized and delivered to the Forensic Science Department for examination, where two files containing child pornography content were discovered. However, the petitioner claimed that he had downloaded the content for personal use only and had never shared or sent it to anyone.

The applicant admitted that he had a history and addiction to viewing pornography as a teenager. However, he claimed that he had never viewed child pornography and indicated that he planned to seek counseling to overcome the addiction.

In its conclusion, the Madras HC observed that mere viewing of child pornography did not constitute a violation of Section 14(1) of POCSO, which required explicit exploitation of children. Moreover, for a violation of Section 67-B of the IT Act, there needs to be evidence of publishing, transmitting or making explicit material of children, which the applicant had not done, the HC said. “Since he has not used any child or children for pornographic purposes, this can at best be construed as a moral lapse on the part of the accused person,” it added.

However, today the Supreme Court took a contrary, but correct, position and ruled that failure to report such material to authorities after obtaining it from any source is a criminal offence.