Image showing the Supreme Court and an phone app titled 'porn'. For representational purposes.
Credit: iStock Photo
New Delhi: The Supreme Court is to pronounce its judgment on Monday in an appeal against a Madras High Court order holding that merely downloading and or watching child pornography on one's electronic device did not constitute an offence under the POCSO and the IT Act.
A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala would render its judgment on September 23.
The court had reserved its judgment on March 19, this year, while observing that merely downloading or watching child porn may not be an offence but certainly, child being used in pornography will be an offence
The Madras High Court had on January 11, 2024 quashed the criminal case against a 28-year-old man, S Harish, charged by the prosecution for downloading and watching on his mobile phone some pornographic content involving children.
The High Court had quashed the criminal case against Harish under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Information Technology Act, 2000.
The HC had granted relief to Harish on the ground that to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person (Harish) must have published, transmitted, created material depicting children in a sexually explicit act or conduct. A careful reading of this provision does not make watching child pornography, an offence under the said Section, it had said.
NGO, Just Right for Children Alliance, which worked for the welfare of children, filed a plea in the apex court for setting aside the HC order and sought appropriate directions against the accused Harish.
The accused, on his part, submitted that when this clip came to him, it was June 14, 2019, and Section 8 was amended on August 16, 2019.
To this, the bench pointed out and clarified that there has to be an intention to distribute the content, but in this case he had only received a clip from someone but had not distributed it.
The apex court also said that the receipt of the video was not violative of Section 15 of POCSO Act. But if someone continued to watch it or had an intent to distribute it, then it was a violation of the provision.
The defense for the accused, Harish, the respondent in the case, said that there was auto download in WhatsApp.
Senior advocate Swarupama Chaturvedi, appearing for the National Commission for Protection of Child Rights (NCPCR), had filed an intervention application for implementing the law.
The NGO, led by senior H S Phoolka submitted before court that the tip came from home ministry to the district police, and it was scanned by a foreign organisation who tracks such internet downloads of child porn. The person was watching child pornography for two whole years, he claimed.