Watching or even storage of pornography involving children is offence under POCSO Act: Supreme Court

New Delhi: In a landmark judgment, the Supreme Court on Monday held that downloading, storing or watching of sexually explicit and abusive material involving children in an individual device is an offence under the Protection of Children from Sexual Offences Act (POCSO Act).

A bench of Chief Justice of India D Y Chandrachud and Justice J B Pardiwala directed the courts against the usage of the term "child pornography" which involved the actual abuse of a child.

Objecting to the use of term pornography, which involved consent, the bench said, "The Parliament should seriously consider to bring about an amendment to the POCSO Act for the purpose of substituting the term "child pornography" that with "child sexual exploitative and abuse material” (CSEAM) with a view to reflect more accurately on the reality of such offences."

The Union of India, in the meantime, may consider to bring about the suggested amendment to the POCSO by way of an ordinance, the bench said.

The court set aside the Madras High Court's judgment of January 11, 2024 which quashed an FIR and charge sheet filed against S Harish after he was allegedly found watching such child exploitative and abusive materials on his mobile phone.

The NGO Just Right for Children Alliance, led by senior advocate H S Phoolka challenged the validity of the High Court's judgment and National Commission for Protection of Child Rights led by senior advocate Swarupma Chaturvedi intervened into the matter.

Bhuwan Ribhu, the founder of the NGO said, "India, has once again, paved the way globally by laying down the framework for prevention and protection of children from this transnational and organised crime. This judgment will have long lasting and global impact on society, crime and child rights and will be etched in history."

In its 200-page judgment, the top court held the High Court committed an egregious error in passing the judgment and restored the criminal proceedings against the accused in the fast track court of Tiruvallur district in connection with the FIR lodged on January 29, 2020.

The court also suggested for implementing comprehensive sex education programmes that include information about the legal and ethical ramifications of child pornography, saying it can help deter potential offenders. These programmes should address common misconceptions and provide young people with a clear understanding of consent and the impact of exploitation, it said.

The court also favoured the Union government to consider constituting an Expert Committee tasked with devising a comprehensive programme or mechanism for health and sex education, as well as raising awareness about the POCSO among children across the country from an early age, for ensuring a robust and well-informed approach to child protection, education, and sexual well-being.

The court held the protection granted to the social media intermediary under Section 79 of the Information Technology Act would not apply if it fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act.

In the case, the High Court had held although the two videos depicting children engaged in a sexual activity were found to have been downloaded and stored in the mobile phone belonging to the accused and assuming that he had watched the same yet the same would not constitute an offence under Section 14(1) of the POCSO.

It had also said mere watching or downloading of child pornography without any transmission or publication of the same does not fall within the purview of Section 67B of the IT Act.

In its judgment, the bench, referring to Section 15 of the POCSO Act, said the mens rea is to be gathered from the manner in which the pornographic material was found to be stored or in possession and any other material apart from such possession or storage that is indicative of any facilitation or actual transmission, propagation, display or distribution of such material.

"Section 15 of the POCSO provides for three distinct offences that penalise either the storage or the possession of any child pornographic material when done with any particular intention specified under subsection(s) (1), (2) or (3) respectively. It is in the nature and form of an inchoate offence which penalises the mere storage or possession of any pornographic material involving a child when done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc," the bench said.

The court said the police as well as the courts while examining any matter involving the storage or possession of any child pornography, finds that a particular sub-section of Section 15 is not attracted, then it must not jump to the conclusion that no offence at all is made out under Section 15 of the POCSO. If the offence does not fall within one particular subsection of Section 15, then it must try to ascertain whether the same falls within the other sub-sections or not.

"Any visual depiction of a sexually explicit act which any ordinary person of a prudent mind would reasonably believe to prima facie depict a child or appear to involve a child, would be deemed as ‘child pornography’ and the courts are only required to form a prima facie opinion to arrive at the subjective satisfaction that the material appears to depict a child from the perspective of any ordinary prudent person for any offence under the POCSO that relates to child pornographic material, such as Section 15," the bench said.

The court pointed out such satisfaction may be arrived at from any authoritative opinion like a forensic science laboratory (FSL) report of such material or opinion of any expert on the material in question, or by the assessment of such material by the courts themselves.

The court also pointed out Section 67B of the IT Act is a comprehensive provision designed to address and penalise the various electronic forms of exploitation and abuse of children online.

"It not only punishes the electronic dissemination of child pornographic material, but also the creation, possession, propagation and consumption of such material as-well as the different types of direct and indirect acts of online sexual denigration and exploitation of the vulnerable age of children," the court said.

The bench said Section(s) 67, 67A and 67B respectively of the IT Act being a complete code, ought to be interpreted in a purposive manner that suppresses the mischief and advances the remedy and ensures that the legislative intent of penalising the various forms of cyber-offences relating to children and the use of obscene or pornographic material through electronic means is not defeated by a narrow construction of these provisions.