The Supreme Court of India has asked the Central Government to respond to a petition from NGOs challenging the Kerala High Court’s ruling that mere possession of child pornography on a phone isn’t an offense under the Pocso or IT Acts. This decision has triggered significant debate and concern.
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NEW DELHI: The Supreme Court of India has issued a notice to the Central Government in response to a petition filed by a coalition of NGOs challenging a controversial ruling by the Kerala High Court. The High Court’s decision, which stated that the mere storage and possession of child pornography on a mobile phone does not constitute an offense under the Protection of Children from Sexual Offences (Pocso) Act or the Information Technology (IT) Act, has sparked widespread debate and concern.
A bench comprising Chief Justice of India D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra took up the petition, highlighting the gravity of the issue at hand. During the proceedings, Chief Justice Chandrachud made a significant reference to a similar case decided by the Madras High Court. In that case, the court had ruled that merely watching child pornography does not amount to a criminal offense.
Chief Justice Chandrachud noted-
“The pending judgment in the Madras High Court could also influence this case.”
He advised the petitioner to wait for the outcome of the Madras High Court judgment before proceeding further, suggesting that the two cases might be closely intertwined in terms of their legal interpretations and implications.
The controversy originated from a June ruling by the Kerala High Court, which discharged a 27-year-old individual, Sebin Thomas, who had been found to have downloaded, stored, and possessed child pornography material on his mobile phone. The High Court’s ruling hinged on the argument that mere “automatic or accidental downloading” of explicit content involving minors does not qualify as an offense under either the Pocso Act or the IT Act.
This decision has raised alarm among child rights activists and legal experts, who fear it may set a dangerous precedent. The ruling was met with significant backlash, particularly from organizations dedicated to the protection of children.
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The petition challenging the Kerala High Court’s ruling was filed by the “Just Rights for Children Alliance,” a coalition of over 120 NGOs actively working in India against the sexual exploitation, trafficking, and forced marriage of children. In their petition, the coalition expressed deep concerns about the potential ramifications of the High Court’s order.
The petition stated-
“The controversial order, widely reported in the media, suggested that individuals who download and possess child pornography would not be prosecuted. This could promote child pornography and harm the welfare of children.”
The coalition fears that the ruling could inadvertently provide a loophole for offenders, thus undermining efforts to curb the dissemination and consumption of child pornography in the country.
Evidence Presented by the Petitioners
Senior advocate H.S. Phoolka, representing the petitioners, presented crucial evidence to the Supreme Court. He informed the bench that the Kerala police had uncovered disturbing details during their investigation. It was revealed that several local children, ranging in age from 8 to 10 years and 15 to 16 years, were involved in the offending sexual videos found in the possession of the accused.
The case against Sebin Thomas had emerged during “Operation P-Hunt,” a specialized initiative led by the Kerala Police CCSE (Countering Child Sexual Exploitation) team, which operates under Cyberdome. This operation is part of a broader effort to curb crimes against children, particularly those involving the online exploitation and abuse of minors.
Rising Incidents of Child Pornography in India
The petitioners also highlighted a disturbing trend in the rise of child pornography cases in India. They pointed to data from the National Crime Records Bureau (NCRB), which indicated a year-on-year increase in the percentage of child pornography cases from 2018 to 2022. The data showed a steep rise in such cases over the four-year period, underscoring the growing menace of child exploitation in the digital age.
The coalition argued that the Kerala High Court’s ruling, if left unchallenged, could exacerbate this trend by emboldening individuals to engage in the storage and distribution of child pornography without fear of legal repercussions.
As the Supreme Court considers the petition and awaits the reserved judgment of the Madras High Court, the case continues to draw attention from legal experts, child rights advocates, and the general public. The outcome of this case could have far-reaching implications for how India addresses the issue of child pornography and the legal frameworks in place to protect children from such heinous crimes.