The Supreme Court passed the order in an appeal filed by the NGO Just Right for Children Alliance against a Madras High Court ruling that had stated watching child pornography in private does not amount to an offence.
NEW DELHI: The Supreme Court ruled on Monday (23rd Sept) that the viewing and storage of pornography involving children on digital devices can be an offence under the Protection of Children from Sexual Offences (POCSO) Act, 2012, if the person involved intended to derive some gain or advantage from it.
A Bench led by Chief Justice of India DY Chandrachud, along with Justice JB Pardiwala, overturned a Madras High Court ruling.
The Bench clarified the level of mens rea (intention) required to commit an offence under Section 15 of the POCSO Act.
“For an offence under Section 15(2) of POCSO to be established, there must be clear intent by the accused to share such material. Beyond mere storage, there must be evidence of facilitation or preparation for transmission or distribution. Mens rea must be inferred from the act of storing such material. Furthermore, to prove an offence under Section 15(3), it must be shown that the material was stored with the intent of gaining some form of benefit or advantage,”
the Court stated.
The Court also discouraged the use of the term ‘child pornography,‘ suggesting that the legislature amend the POCSO Act to refer to such material as ‘child sexually abusive and exploitative material.‘
“We have recommended that an ordinance be introduced, and have instructed all courts to avoid using the term ‘child pornography’ in their orders,”
the Supreme Court emphasized.
READ ALSO: SC Reserves Judgment on ‘Child Pornography Downloading Case’ Against Madras HC’s Order
The Supreme Court passed the order in an appeal filed by the NGO Just Right for Children Alliance against a Madras High Court ruling that had stated watching child pornography in private does not amount to an offence.
In that ruling, Justice N Anand Venkatesh had concluded that “merely downloading or viewing child pornography on a personal electronic device does not constitute an offence under the POCSO Act or the Information Technology (IT) Act”.
The High Court made these observations while dismissing charges against S Harish, who had been booked under the POCSO Act and the IT Act for downloading and watching two child pornography videos on his mobile phone. The Court also acknowledged the rising issue of porn addiction among youth and emphasized the need for a balanced approach to address the problem.
This ruling prompted an appeal before the Supreme Court.
In March, the Supreme Court, while hearing the case, criticized the High Court’s ruling, calling the observations “atrocious.”
Recently, the Kerala High Court held that the accidental or automatic downloading of child pornographic content does not constitute an offence under the IT Act.
In 2022, the Supreme Court declined to entertain a petition that sought directions for the Bureau of Police Research and Development (BPRD) to gather data on the potential link between the viewing of pornographic material and the commission of sexual offences.
Case Title: Just Right for Children Alliance and Anr v S Harish and Ors.
