Downloading, Watching Child Porn Offence Under POCSO Act: SC Sets Aside Madras HC Order

New Delhi: In a landmark verdict, the Supreme Court on Monday ruled that the mere storage of child pornographic material constitutes an offence under the Protection of Children from Sexual Offences Act (POCSO Act) and the Information Technology (IT) Act. The major ruling set aside an earlier decision by the Madras High Court, which had controversially held that these acts did not constitute an offence under existing laws.

A bench comprising Chief Justice D Y Chandrachud and Justices J B Pardiwala and Manoj Misra clarified that both watching and downloading child pornography are indeed offences under the law. The court suggested that Parliament consider amending the POCSO Act to replace the term "child pornography" with "Child Sexual Exploitative and Abusive Material." Until such an amendment is enacted, the Supreme Court advised that the Union government could issue an Ordinance to this effect.

The Supreme Court directed all courts to refrain from using the term "child pornography." This ruling came in response to a plea challenging the earlier Madras High Court decision, which had quashed criminal proceedings against a 28-year-old man charged with downloading pornographic content involving children on his mobile phone.

The top court also laid down certain guidelines related to child pornography and its legal consequences.

In its judgment, the Supreme Court urged Parliament to consider amending the POCSO Act to replace the term "child pornography" with "Child Sexual Exploitative and Abusive Material." The bench suggested that, until such amendments are made, the Union government could issue an Ordinance to this effect. The court further directed all courts to stop using the term "child pornography" in future rulings and legal proceedings.

Top Court’s Recommendation for Legal Reform

The bench highlighted the serious impact of child pornography on victimised children and stressed the role of society and stakeholders in reporting such offences. "We have said about the lingering impact of child pornography on victimisation and abuse of children and on the role to report an offence, including the role of society and stakeholders," the bench stated.

"We have suggested to Parliament to bring an amendment to POCSO so that the definition of child pornography can be referred to as 'child sexually abusive and exploitative material'. We have suggested an Ordinance can be brought in," the court added.

Timeline of the Case

The Supreme Court delivered this verdict in response to a plea challenging the January 2024 ruling of the Madras High Court, which had quashed criminal proceedings against a 28-year-old man accused of downloading child pornographic material onto his mobile phone. The Madras High Court had ruled that merely downloading and watching child pornography did not violate the POCSO Act or the IT Act. It stated that for an offence to be established under the POCSO Act, children must be directly involved in the creation of the material, and for an IT Act violation, the material must have been published, transmitted, or created by the accused.

Earlier, on April 19, the Supreme Court had reserved its verdict on an appeal against the Madras High Court's ruling, which held that downloading and possessing child pornography is not a crime. The bench reserved the verdict after hearing arguments from both sides, allowing parties to file written submissions.

The ruling by the Madras High Court had sparked widespread concern, with child welfare organisations expressing fear that it would encourage the spread of child pornography and undermine the safety of children.

The Plea

The plea challenging the High Court’s decision was brought forward by NGOs Just Rights for Children Alliance and Bachpan Bachao Andolan, both of which advocate for the protection and welfare of children. The plea contended that the Madras High Court's January order—which stated that mere downloading and watching child pornography does not constitute an offence under the POCSO and Information Technology Acts—was fundamentally flawed. The High Court maintained that to establish an offence under the POCSO Act, a child must have been used for pornography purposes, and for an offence under the IT Act, the accused must have published, transmitted, or created the material.

"The impugned order, extensively covered in newspapers, gives the impression that individuals who download and possess child pornography will not face prosecution. This will encourage child pornography and would act against the well-being of children. The impression is given to the general public that downloading and possessing child pornography is not an offence and it would increase the demand for child pornography and encourage people to involve innocent children in pornography," the petition said.

"It is relevant to mention that the present case involves the downloading and viewing of pornographic material relating to children, which falls within the ambit of an offence under Section 15 of the POCSO Act, 2012. The distinction is paramount, as the nature of the content and the involvement of minors in the material make it subject to the provisions of the POCSO Act, rendering it a distinct offence from the one considered in the Kerala High Court's judgment," read the plea.

According to the petition, in India, both the POCSO Act 2012 and the IT Act 2000, along with other laws, criminalize the creation, distribution, and possession of child pornography.

"It's imperative to underscore that the legal framework prioritizes the protection of children from sexual exploitation, and any involvement with explicit material involving minors is treated as a grave offence. Under various legal provisions, including the POCSO Act and the IT Act, the possession, distribution, and consumption of child pornography are considered serious crimes. It is important to note that possessing (including simple possession) is illegal (de jure) for child pornography," the petition said.

The Chennai Police had initially registered a case against the 28-year-old man under Section 67B of the IT Act and Section 14(1) of the POCSO Act after seizing his phone and discovering downloaded child pornography content. However, the Madras High Court had quashed the case, prompting the appeal to the Supreme Court, which has now overturned that ruling.

On January 11, 2024, the Madras High Court had quashed the FIR and criminal proceedings against the accused, stating that downloading and possessing child pornography did not violate Section 67B of the IT Act. The Chennai Police had registered a case against the accused under Sections 67B of the IT Act and 14(1) of the POCSO Act after seizing his phone, which contained downloaded child pornography.