SC Condemns Madras HC's Ruling; Asserts Storing, Watching Child Porn As Crime

The Supreme Court of India dismissed a January 2024 ruling by the Madras High Court which stated that downloading and viewing child pornography is not an offence. On September 23, the apex court asserted that mere storage of such material is a crime under the Protection of Children from Sexual Offences Act (POCSO Act). The bench also suggested that Parliament must bring a law amending the POCSO Act to clarify the term "child pornography" and replace it with "Child Sexual Exploitative and Abusive Material".

Justice JB Pardiwala said during the recent hearing, "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," Bar and Bench quoted. The bench ordered that all courts must refrain from using the term "child pornography." Justice Pardiwala observed that the Central government can bring an ordinance until the amendment in the POCSO Act is passed. 

During a recent legal development, the Madras High Court stirred controversy by declaring that downloading and viewing child pornography is not an offence, raising eyebrows and prompting the Supreme Court to express its disapproval. The Chief Justice of India, DY Chandrachud, deemed the ruling "atrocious," setting the stage for a legal battle that could have far-reaching implications for child welfare.

Background of the Case

In January, the Madras High Court was dealing with the case of S. Harish, who was booked under the Protection of Children Under Sexual Offences (POCSO) and the Information and Technology Act (IT Act) for watching child porn. Reportedly, he downloaded and watched two child pornography on his mobile phone. However, the bench headed by N. Anand Venkatesh said that it is not an offence to just watch child porn unless someone engages in using a child for pornographic purposes. 

According to the Bar and Bench, the case revolves around a 28-year-old man from Chennai, whose involvement in explicit material involving a child led to the quashing of the FIR and criminal proceedings by the Madras High Court. The accused, who downloaded the material on his mobile phone, benefited from the High Court's interpretation that watching child pornography does not fall under the purview of the Protection of Children from Sexual Offences (POCSO) Act, 2012.

Madras High Court's Reasoning

The Madras High Court's decision rested on several key points. Firstly, it emphasized that the accused had downloaded the material for private viewing with no intention of publication or transmission. Secondly, the court argued that merely downloading and watching child pornography is not an offense under Section 67-B of the Information Technology Act, 2000. Importantly, the court highlighted that to trigger POCSO Act offenses, a child or children must have been used for pornographic purposes. In this case, the accused had watched explicit videos but had not involved a child in any pornographic activity, leading the court to categorize it as moral decay rather than a criminal offense.

The court said, "To make out an offence under Section 14(1) of the Protection of Child from Sexual Offences Act, 2012, a child or children must have been used for pornography purposes. This would mean that the accused person should have used the child for pornographic purposes. Even assuming that the accused person watched a child pornography video, that strictly will not fall within the scope of Section 14(1) of the Protection of Child from Sexual Offences Act, 2012.."

It further added, "In order to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person 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, per se, an offence under Section 67-B of the Information Technology Act, 2000." 

The court reinstated the judgement made by the Kerala High Court that Section 292 of the Indian Penal Code will be applicable only when a person publicly exhibits, distributes, or shares pornographic videos. 

Moreover, the court also lamented the fact that pornography addiction is growing among youth in Generation Z. It said that rather than punishing them, the best way to grapple with the situation is to educate them and counsel them to get rid of the addiction. The judge said, "There used to be addiction to smoking, drinking, etc. and there is a growing rise in addiction to watching porn photos/videos. This, is in view of the fact that it is easily available on electronic gadgets, and by repeatedly watching the same, it becomes a habit, and ultimately, the person gets addicted."

Potential Ramifications and Legal Battle

The Just Rights for Children Alliance, a coalition of NGOs, voiced grave concerns about the potential social impact of normalizing child pornography. They argued that the Madras High Court's order could inadvertently encourage the consumption of child pornography by creating an impression that individuals downloading and possessing such material will not face prosecution. The alliance emphasized the possible harm to innocent children and the negative impact on overall child welfare. They contended that the order might increase the demand for child pornography and encourage individuals to involve innocent children in such illicit activities.

In response to the Madras High Court's decision, the Supreme Court, led by Chief Justice DY Chandrachud and comprising Justices JB Pardiwala and Manoj Misra, heard a plea filed by Just Rights for Children Alliance. The bench issued notice on the petition, returnable within three weeks.