SC Sets Aside Order Holding That Downloading And Watching Child Porn Is Not Offence; Suggests Parliament To Replace Term "Child Pornography" With "Child-Sexual Exploitative And Abuse Material"
|In a landmark judgment, the Supreme Court today set aside a Madras High Court's ruling, which said that mere downloading and watching child pornography is not an offence under the POCSO Act and the Information Technology Law.
The Bench of Chief Justice DY Chandrachud and Justice JB Pardiwala has suggested to the parliament to bring around an amendment to the POCSO Act for substituting the term "Child Pornography" with "Child-Sexual Exploitative and Abuse Material" (CSEAM).
"We have also requested the union that, in the meantime, you may consider issuing an ordinance to bring around this amendment in the definition. So don't use the word 'Child Pornography', instead say Child Sexual Exploitative and Abuse Material. We have also directed all courts, that, henceforth, don't use the term 'Child Pornography', in any of your judicial orders," the Court pronounced.
Justice Pardiwala, in open court, said, "We have tried our own way to explain all relevant provisions, particularly, on the presumptions of the culpable state of mind, etc. We have also issued a few directions, and we have also given a few suggestions."
Highlighting Section 15 of the POCSO Act, which deals with the punishment for storing or possessing child pornography, the Court said, "To constitute an offence under S.15(3) POCSO, there is no requirement to show that such gain or benefit acquired... This is how we have explained the three sub-sections. They are independent of each other. They are not connected with each other. So, if a case is not falling under one sub-section, that doesn't mean that it will not fall under the entire section."
"We have also talked about the obligation to report under Sections 19 and 21 of the POCSO and the role of society and all stakeholders," the Bench said.
Conclusively, the Court held, "For all the forgoing reasons, we have held that the High Court committed an egregious error in passing the impugned judgment. We are left with no other option, but to set aside the impugned judgment of the High Court and restore the criminal proceedings....to the Court of Sessions Judge, Fast track Court."
The High Court had, on January 11, quashed the criminal proceedings against a 28-year-old man charged with downloading on his mobile phone, pornographic content involving children.
During the hearing before the Apex Court, Senior Advocate H.S. Phoolka, appeared for the petitioner, two NGOs, and Senior Advocate Swarupama Chaturvedi, appeared for the National Commission for Protection of Child Rights (NCPCR).
Pertinently, on April 19, the Court had reserved its verdict in the SLP. It is to be noted that on March 11, the Bench issued notice in the SLP. The Court had also sought the response of S. Harish, a resident of Chennai, and the Tamil Nadu Police.
On January 11, 2024, the Madras High Court had held that the mere act of watching or downloading child pornography does not make out an offence under Section 67-B of the Information Technology Act, 2000 (IT Act). The Court had discussed the issue of pornography addiction and sexually explicit material on the internet being readily available. The Court had expressed, “Viewing pornography can have negative consequences on teenagers down the line, affecting both their psychological and physical well being.”
A Single-Judge Bench had acknowledged the challenges of porn addiction amongst teenagers and observed, “The Generation Z Children are grappling with this serious problem and instead of damning and punishing them, the society must be mature enough to properly advice and educate them and try to counsel them to get rid of that addiction.
Cause Title: Justice Rights for Children Alliance and Anr. v. S. Harish & Ors. [SLP(Crl) No. 003665 - 003666 / 2024]