CJI Chandrachud questioned the validity of the order, emphasizing that there is a clear provision within the act regarding such offenses.
“This (the high court judgement) is atrocious. How can the single judge say this? Issue notice returnable in three weeks,” the CJI said.
The bench with CJI Chandrachud and justices JB Pardiwala and Manoj Misra took note of the submissions appearing for two petitioner organisations, that the high court judgement was contrary to the laws.
The plea was lodged by the NGOs Just Rights for Children Alliance and Bachpan Bachao Andolan, with Senior Advocate HS Phoolka representing them.
The Supreme court intervention came in relation to a Madras high court ruling in January which said that mere downloading and watching of child pornography is not an offence under the Pocso Act and Information Technology Act.
Justice N Anand Venkatesh of Madras high court said that, to make out an offence under Pocso Act, a child or children should have been used for pornography purposes. And to constitute an offence under IT Act the accused must have published, transmitted and created the material.
Citing a Kerala high court judgment, which took a similar stand, the judge said, “… in view of the fact that this act is done by the person in privacy without affecting or influencing anyone else. The moment the accused person tries to circulate or distribute or publicly exhibits obscene photos or videos, then the ingredients of the offence starts kicking in.”
What is the plea?
The plea has challenged a Madras high court order of January 11, this year by the high court of Madras, which quashed the FIR and criminal proceedings related to the downloading of child pornography and held that downloading and possessing child pornography does not amount to any offence under Section 67B of the Information Technology (IT) Act, 2000.
“The impugned order, extensively covered in newspapers, gives the impression that individuals who download and possess child pornography will not face prosecution. This will encourage child pornography and would act against the well-being of children. The impression is given to the general public that downloading and possessing child pornography is not an offence and it would increase the demand for child pornography and encourage people to involve innocent children in pornography,” the petition said.
Chennai Police have registered a case against the accused under Sections 67 B of the IT Act and 14(1) of the POCSO Act after they seized the phone of the accused and discovered that he had downloaded and possessed child pornography.
NGOs further said that the Madras high court erred in its reliance on the judgment of the high court of Kerala, stating that the act of watching an obscene photo or video alone does not constitute an offence under Section 292 of the Indian Penal Code (IPC).
“It is relevant to mention that the present case involves the downloading and viewing of pornographic material relating to children, which falls within the ambit of an offence under Section 15 of the POCSO Act, 2012. The distinction is paramount, as the nature of the content and the involvement of minors in the material make it subject to the provisions of the POCSO Act, rendering it a distinct offence from the one considered in the Kerala high court’s judgment,” read the plea.
According to the petition, in India, both the POCSO Act 2012 and the IT Act 2000, along with other laws, criminalize the creation, distribution, and possession of child pornography.
“It’s imperative to underscore that the legal framework prioritizes the protection of children from sexual exploitation, and any involvement with explicit material involving minors is treated as a grave offence. Under various legal provisions, including the POCSO Act and the IT Act, the possession, distribution, and consumption of child pornography are considered serious crimes. It is important to note that possessing (including simple possession) is illegal (de jure) for child pornography,” the petition said.
(With inputs from agencies)