The Supreme Court of India has unequivocally ruled that downloading, watching, and storing child pornography is a punishable offence under the Protection of Children from Sexual Offences (POCSO) Act. This decision overturns a controversial ruling by the Madras High Court that had previously stated such actions were not criminal.
On September 23, 2024, a bench comprising Chief Justice DY Chandrachud and Justice JB Pardiwala condemned the High Court’s earlier judgment as “atrocious,” emphasising the urgent need to protect vulnerable children from sexual exploitation.
The apex court reinstated criminal proceedings against S Harish, a Chennai resident who had downloaded child pornography, restoring public trust in the legal system’s commitment to child welfare.
The case emerged after S Harish, a 28-year-old from Chennai, was charged with downloading child pornography on his mobile phone. In January 2024, the Madras High Court quashed the criminal proceedings against him, arguing that merely watching and downloading child pornography for private use did not constitute an offence. This ruling was based on the interpretation that the POCSO Act required evidence of direct involvement with children in the creation of such material, which was not present in Harish’s case.
The High Court’s judgment sparked outrage among child advocacy groups and legal experts, who warned that it could set a dangerous precedent by implying that consuming child pornography could be acceptable if not shared or distributed. The Just Rights for Children Alliance, a coalition of NGOs dedicated to child welfare, filed a plea challenging the High Court’s decision, highlighting the potential harm to children and the risk of normalising child exploitation.
The Court stated that the criminality of these acts is not limited to creation or distribution; simply possessing or viewing such material is sufficient to establish an offence. The judgment noted that the failure to delete or report child pornography reflects a culpable mental state, an essential element for prosecution under Section 15 of the POCSO Act.
In a striking clarification, the Court ruled that it is not necessary for the material to still be present at the time of an FIR registration to establish an offence. This addresses concerns that individuals could evade responsibility by deleting incriminating material before legal action is taken.
In a significant step towards enhancing child protection laws, the Supreme Court recommended that the central government amend the POCSO Act to replace the term “child pornography” with “child sexually abusive and exploitative material.” This change aims to more accurately represent the severity of the crime and eliminate any misconceptions surrounding the term.
The Court directed all lower courts to avoid using the term “child pornography” in legal proceedings, urging a shift in the language used to discuss and adjudicate these cases.
The ruling has broader implications for the societal perception of child pornography. By unequivocally classifying viewing, downloading, and storing such material as criminal acts, the Supreme Court sends a powerful message that there is no tolerance for any form of child exploitation.
The Just Rights for Children Alliance, represented by senior advocate HS Phoolka, expressed relief at the Supreme Court’s decision. They emphasised that the High Court’s earlier ruling risked fostering a dangerous environment where individuals might feel emboldened to engage in child pornography without fear of legal repercussions.
The Alliance’s petition highlighted that normalising the consumption of child pornography would likely increase demand, further endangering children. They argued that society must acknowledge the severity of these crimes and take decisive action to protect the most vulnerable.
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