See No Evil

The Supreme Court recently agreed to examine a plea challenging the judgment of the Madras High Court related to downloading and watching child pornographic content privately. The High Court had ruled that this does not constitute an offence under the POCSO Act. However, the top court termed the ruling “atrocious”

By Dr Swati Jindal Garg

One of Gandhi’s famous monkeys symbolised: “See no Evil”. Apparently, the saying still holds true. The Madras High Court recently quashed the criminal proceedings against a 28-year-old man charged with downloading on his mobile phone pornographic content involving children. The High Court reasoned that to qualify as an offence under the Protection of Children from Sexual Offences Act (POCSO) and the Information Technology (IT) Act, the accused must have created, published and transmitted the material. And in relation to the IT Act, the High Court said that the relevant section did not cover cases where an individual only downloaded and watched content, without doing more. However, the apex court said the ruling was “atrocious”, and agreed to hear a plea challenging the same.

Slamming the single-judge ruling by the High Court, Chief Justice of India DY Chandrachud said: “How can the single judge say this?” as a bench led by him and also comprising Justices JB Pardiwala and Manoj Misra took note of the submissions made by a senior advocate that the High Court judgment was contrary to the laws. The senior advocate was appearing for two petitioner organisations, namely Just Rights for Children Alliance of Faridabad and the New Delhi-based Bachpan Bachao Andolan, both of which work for the welfare of children. 

The High Court had quashed a criminal case against S Harish, against whom the police had filed the final report after investigation and cognisance had been taken by the High Court under Section 14(1) of the POCSO and IT Act, 2000. Harish was reportedly charged with downloading on his mobile phone pornographic content involving children. “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 Information Technology Act, 2000,” the High Court ruled.

The High Court had, however, expressed concern over children watching pornography, stating that viewing pornography can have negative consequences on teenagers down the line, affecting both their psychological and physical well-being. The High Court also suggested a more nuanced approach to address the issue. It emphasized the importance of education and stated that counselling rather than punitive measures would be more suitable in these circumstances. The ruling highlighted the necessity of guiding and advising young individuals, who may be grappling with the consequences of exposure to adult content, so that they can have a  “healthy and happy future”.

It is important to note here that the central government had sent notices to social media platforms X (formerly Twitter), YouTube and Telegram last year warning that they would lose legal immunity unless they act on this issue urgently. The said platforms were also asked to permanently remove, or disable access to, any child pornography content. This action taken by the centre was then followed by reports that another social media platform—Instagram—is home to a vast network of such content being created and shared. A Wall Street Journal report had even said that Instagram’s algorithms linked and promoted this network of people seeking illegal sexual content and activity.

In the light of all these events, the Supreme Court also sought the response of Harish, a resident of Chennai, and the two police officers of Tamil Nadu. The case has now ignited a debate on the interpretation of legal statutes concerning child pornography and the appropriate measures needed to address its proliferation.

While acknowledging the harmful effects of exposure to pornography on minors, the High Court stressed the importance of proactive educational interventions. It suggested that addressing the issue should commence at the school level to mitigate the risks associated with early exposure to explicit material.

The ruling urged petitioner Harish to consider counselling if he continues to struggle with pornography addiction. This emphasis on rehabilitation reflects a growing recognition of the complexities involved in addressing issues related to online content consumption.

In its defence, the High Court while giving this judgment had relied upon a case decided by the Kerala High Court wherein it was held that watching pornography in private space is not an offence under Section 292 of the Indian Penal Code (IPC). The case was related to the quashing of a criminal case registered against a youth in 2016 by the Aluva police as he had been watching pornographic material on his mobile phone on the roadside at night.

The POCSO Act was enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992. It needs to be kept in mind that the aim of this special law is to address offences of sexual exploitation and sexual abuse of children, which were either not specifically defined or inadequately penalised. As per this Act, a child has been defined as any person below the age of 18 years. The Act provides punishment as per the gravity of the offence and recognizes that both girls and boys can be victims of sexual abuse and that such abuse is a crime regardless of the gender of the victim.

It needs to be appreciated that the facts in the case decided by the Kerala High Court in Aneesh vs State of Kerala, 2023, did not pertain to child pornography. While watching adult pornography in privacy has been held as not to be an offence under Section 292 of the IPC (both by the Kerala High Court and the Supreme Court), downloading sexually explicit material pertaining to children is a whole different issue and clearly an offence under the IT Act.

Section 67B of IT Act, 2000, that was invoked by the police against the accused in the case at hand has five sub-clauses dealing with different aspects such as:

(a) talks about publishing or transmitting material depicting children engaged in sexually explicit act or conduct,

(b) deals with acts, including downloading of child pornography material,

(c) talks about cultivating, enticing or inducing children to [an] online sexually explicit relationship,

(d) talks about facilitating abuse of children online and sub-clause,

(e) talks about recording abuse/a sexually explicit act with children.

Section 14 of POCSO Act, 2012, further states that whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine. Sub-section 2 mentions that whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to

in Section 3 or Section 5 or Section 7 or Section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under Section 4, Section 6, Section 8 and Section 10, respectively, in addition to the punishment provided in sub-section (1).

Section 67B of the IT Act, along with related sections such as 67, 67A and Section 14 of POCSO Act, 2012, constitutes a comprehensive legislative framework to address offences related to child pornography. Even though the inclusion of specific provisions reflects the intent to combat sexual exploitation of children in cyberspace, some advocates suggest that the words “child pornography” should be replaced with “child sexual abuse materials” (CSAM) to better reflect the non-consensual nature of the content. This linguistic shift will not only enhance legal clarity, but also emphasise the seriousness of the offence. However, amendments to the POCSO Act may be necessary to include possession of CSAM as a separate offence, aligning it with the provisions of the IT Act, 2000. Further, harmonising provisions between the POCSO Act, 2012, and the IT Act, 2000 to ensure consistency in addressing offences related to child sexual exploitation would also result in streamlining the legal procedures and strengthen the protection of children. 

It is crucial for the state government and respective investigating agencies to take a stand against the Madras High Court’s decision to prevent setting a detrimental precedent. Upholding the integrity of laws related to child protection is essential for safeguarding vulnerable populations and ensuring justice.

As the Supreme Court prepares to delve into this contentious issue that raises crucial legal and ethical considerations regarding the interpretation and application of laws concerning child pornography, the case underscores the need for a balanced approach that prioritizes the protection of children while addressing the underlying societal factors contributing to the prevalence of child pornography. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

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