SC reserves verdict on Madras HC’s child pornography order

The Supreme Court on Friday reserved its order on a Madras high court decision that merely watching child pornography is not an offence, quashing a criminal case against a 28-year-old man last month for downloading and watching pornographic content involving children on his mobile phone.
A bench headed by chief justice of India (CJI) Dhananjaya Y Chandrachud said, “The high court has said watching pornography is not an offence but with child being used in pornography it will be an offence.”
The Madras HC order of March 11 was challenged by a coalition of NGOs, Just Rights for Children Alliance, contending that the judgment gave an impression that “mere downloading and possession of child pornography will not face prosecution”, which would be detrimental to the well-being of children and encourage child pornography.
Before reserving its order, the bench, also comprising justice JB Pardiwala, said, “The question we have to consider is whether it is involuntary on his (accused) part as he claims he got it through WhatsApp, did not modify it, and he was not aware of it.”
The accused was charged in the year 2019 under Section 14 of the Protection of Children from Sexual Offences (Pocso) Act, 2012 and the Information Technology Act, 2000. The first information report (FIR) was lodged under Section 14 of the Pocso Act prescribing punishment for using a child for pornographic purposes and Section 67B of the IT Act.
The high court said, “Since he has not used a child or children for pornographic purposes, at best, it can only be construed as a moral decay on part of the accused person.”
The lawyer for the accused told the court that he had no intention to download or store the videos as he received it in a WhatsApp group and it remained in his mobile phone.
Senior advocate HS Phoolka appearing along with advocate Jagjit Singh Chabra for the petitioner said, “Intention is to be proved at the time of trial. According to the information received from US-based National Centre for Missing and Exploited Children (NC-MEC), having a collaboration with Indian government, the accused had been watching child pornography since the last two years and is a habitual offender.”
Phoolka said that the charge sheet filed by the police is under Section 15(1) of Pocso Act which punishes possession and storage of pornographic material involving children with a fine. Section 15(1) was later introduced to the Act in August 2019, much later after the FIR in this case was lodged in June 2019. The top court bench said, “Section 15(1) makes possession an offence. If you get something, you have to delete it. After the amendment, if you continue to breach the provisions without destroying or deleting the files with an intention to transmit, will not an offence be made?”
The National Commission for Protection of Child Rights (NCPCR) filed an application to be added as a party to the proceedings and pointed out that while this case has come from Tamil Nadu, the commission has been receiving complaints from several other states. Senior advocate Swarupama Chaturvedi, appearing for the NCPCR, said, “Ignorance cannot be a defence in such cases as there is a presumption of culpability under the Pocso Act.” The court permitted NCPCR to file its submissions by Monday and allowed its application.
The lawyer for the accused argued that the youth in the country are unaware of Pocso provisions and those who receive such messages in their social media groups can end up getting prosecuted.
In the present case, the National Crime Records Bureau (NCRB) made a complaint against the accused after it received a tip-off from NC-MEC which claimed that the accused had been watching child pornography on his mobile phone number for the last two years. The forensic report found two such files in the phone of the accused.
On April 5, the top court agreed to examine the issue and termed the HC order “atrocious”. The HC order came on a petition filed by the accused who sought quashing of the criminal case against him as he argued that merely downloading the material and watching the pornographic content in privacy without publishing or transmitting to others is not an offence.