Downloading, watching sexually explicit material involving children crime: SC

Mere downloading, storage or watching of sexually explicit and abusive material involving children would amount to offences under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act, the Supreme Court ruled on Monday.

In a landmark judgment, a Bench of CJI DY Chandrachud and Justice JB Pardiwala said, “Child sexual exploitation is one of the most heinous crimes imaginable, and the offence of child pornography is equally as heinous, if not more, as in the latter the victimisation and exploitation of the child does not end with the initial act of abuse.”

Writing the judgment for the Bench, Justice Pardiwala said Section 15 of the POCSO Act penalised the mere storage or possession of any pornographic material involving a child when it’s done with a specific intent prescribed under the provision without requiring any actual transmission, dissemination, etc.

“We are of the considered view that wherever a person indulges in any activity such as viewing, distributing or displaying, etc, pertaining to any child pornographic material without actually possessing or storing it in any device or in any form or manner, such act would still (be) tantamount to ‘possession’ in terms of Section 15 of the POCSO, if he exercised an invariable degree of control over such material, applying the aforesaid doctrine of constructive possession,” Justice Pardiwala wrote.

It directed courts across India not to use the term "child pornography", saying it failed to capture the full extent of the crime and could lead to a trivialisation of the crime, undermining the victimisation. “We…forbid the courts from using the term "child pornography" and instead the term "child sexual exploitative and abuse material" (CSEAM) should be used in judicial orders and judgments of all courts across the country which involved the actual abuse of a child,” the Bench said.

The top court said, "Parliament should seriously consider to bring about an amendment to the POCSO (Act) for the purpose of substituting the term “child pornography” with “child sexual exploitative and abuse material” (CSEAM) with a view to reflecting more accurately on the reality of such offences. The Union of India, in the meantime, may consider bringing about the suggested amendment to the POCSO by way of an ordinance.”

The verdict came on a petition filed by Just Right for Children Alliance and National Commission for Protection of Child Rights challenging the Madras High Court’s January 11, 2024 verdict that quashed criminal proceedings against a 28-year-old man charged with downloading pornographic content involving children on his mobile phone. Terming it “an egregious error”, the top court set aside the high court’s order.

The Bench said “social media intermediaries, in addition to reporting the commission or the likely apprehension of commission of any offence under POCSO to the National Centre for Missing & Exploited Children (NCMEC), is also obligated to report the same to authorities specified under Section 19 of POCSO, ie, the Special Juvenile Police Unit (SJPU) or the local police.”

It said, “In view of the salutary object and the mandatory character of the provisions of Sections 19 and 20 of the POCSO read with Rule 11 of the POCSO Rules, we are of the considered view, that an intermediary (social media platform) cannot claim exemption from the liability under Section 79 of the IT Act for any third-party information, data, or communication link made available or hosted by it, unless due diligence is conducted by it and compliance is made of these provisions of the POCSO (Act).

“We are also of the view that such due diligence includes not only removal of child pornographic content but also making an immediate report of such content to the concerned police units in the manner specified under the POCSO Act and the Rules thereunder,” it added.

The Bench also favoured comprehensive sex education, including information about the legal and ethical ramifications of child pornography as it could help deter potential offenders and address common misconceptions, providing young people with a clear understanding of consent and impact of exploitation.