Is mere storage of child pornography crime under POCSO/IT Acts? SC verdict on Monday

Does mere storage of child pornography in a mobile phone amount to crime under the Protection of Children from Sexual Offences (POCSO) Act, 2012, or the Information Technology Act, 2000?

A Bench of Chief Justice DY Chandrachud, Justice JB Pardiwala and Justice Manoj Misra will pronounce the verdict on the contentious issue on Monday.

Acting on a petition filed by the Just Rights for Children Alliance, the Bench had in August decided to examine a verdict of the Kerala High Court which ruled that mere downloading and storing of child pornography on one’s mobile phone couldn’t be considered an offence under the POCSO/IT Acts.

Terming the Kerala HC verdict as “atrocious”, it had issued notices to the Kerala Government, Sebin Thomas and another asking them to spell out their respective stand on the petition challenging the high court’s verdict.

Citing the National Crime Records Bureau (NCRB) data, the petitioner -- a coalition of over 120 NGOs – sought to highlight the fact that there has been almost a 2,561 per cent increase in child pornography cases between 2018 and 2022.

On behalf of the petitioner, senior counsel HS Phoolka had told the Bench that the Kerala Police had found that several local children in the age group of 8-10 and 15-16 years were involved in the offending sexual videos.

Phoolka had said the accused was arrested during Operation P-Hunt -- a special drive launched by the Countering Child Sexual Exploitation Team of the Kerala Police functioning under Cyberdome to curb crimes against children.

Ruling that an automatic or accidental downloading of child pornography i.e. videos of children engaged in sexually explicit act or conduct was not an offence under Section 67B (b) of the IT Act or Section 15(2) of the POCSO Act when evidence showed no specific intent to transmit or distribute such content, the high court had discharged the accused who had allegedly downloaded child pornography on his phone from an app.

The top court had referred to a challenge against a Madras High Court order that said watching child pornographic videos will not by itself attract offences under the POCSO Act. “We have reserved judgment in the Madras High Court order challenge, just wait for it,” the CJI told Phoolka.