'Watching, storage of child pornography crime': Indian SC rules, quashing Madras HC's judgment

The Indian Supreme Court on Monday (Sep 23) ruled that watching and storage of child pornography amounted to an offence under theProtection of Children from Sexual Offences Act (POCSO Act). In the process, the court overturned a Madras High Court ruling which stated that downloading and watching pornography involving children on digital devices was not an offence.

A bench of Chief Justice of India (CJI) DY Chandrachud and Justice Pardiwala said the High Court committed an "egregious error" in quashing the criminal proceedings. The bench set aside the decision and restored the criminal prosecution.

"The HC committed an error in its order and thus we set aside the HC order and we remit the matter back to the sessions court," the court observed.

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The bench also explained the degree ofmens rea (intention) required for such an act to constitute an offence under Section 15 of the POCSO Act. Notably, sub-section (1) of Section 15 penalises the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession by any person with an intention to share or transmit the same.

"Facilitation of such transmission, preparation, set up to enable transmit etc has to be there. Mens reahas to be found from the storage of such pornographic material. To establish offence under Section 15(3), apart from storage of child pornographic material, it has to be shown that such storage was done to make some gain or advantage."

The court also suggested that the Indian Parliament bring a law amending the POSCO Act to replacethe term "child pornography" with "Child Sexual Exploitative and Abusive Material".

NGO, Just Right for Children Alliance, which worked for the welfare of children had filed the petition in the apex court demanding that the HC order be set aside and appropriate directors be issued in the matter.

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What did Madras High Court rule?

In January this year, the Madras High Court quashed the case against S Harish (28), chargedfor downloading and watching on his mobile phone some pornographic content involving children.

The court ruled that in order to consider what Harish did as an offence under Section 67-B of the InformationTechnology Act, 2000, he must have published, transmitted, and 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.

(With inputs from agencies)