SC to examine Madras HC ruling that downloading, watching child porn not offence under POCSO, IT laws

Madras High Court had, on January 11, quashed the criminal proceedings against a 28-year-old man charged with downloading on his mobile phone pornographic content involving children

Updated - March 11, 2024 06:26 pm IST

Published - March 11, 2024 05:11 pm IST - New Delhi

A general view of Supreme Court of India.

A general view of Supreme Court of India. | Photo Credit: Shashi Shekhar Kashyap

Terming as “atrocious”, the Supreme Court on March 11 agreed to hear a plea challenging a Madras High Court ruling which said that mere downloading and watching child pornography is not an offence under the POCSO Act and the Information Technology law.

The High Court had, on January 11, quashed the criminal proceedings against a 28-year-old man charged with downloading on his mobile phone pornographic content involving children.

The present-day children are grappling with the serious issue of watching porn and instead of punishing them, the society must be "mature enough" to educate them, it had also said.

A Bench comprising Chief Justice D.Y. Chandrachud and justices J.B. Pardiwala and Manoj Misra took note of the submissions of senior advocate H.S. Phoolka, appearing for two petitioner organisations, that the High Court judgment was contrary to the laws.

“This (the high court judgement) is atrocious. How can the single judge say this? Issue notice returnable in three weeks,” the CJI said.

A senior lawyer appeared for two petitioner organisations -- ‘Just Rights for Children Alliance’ of Faridabad and New Delhi-based ‘Bachpan Bachao Andolan’. The NGOs work for the welfare of children.

The top court also sought the response of S. Harish, a resident of Chennai and the two police officers concerned of Tamil Nadu.

The High Court had quashed the criminal case against Harish under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Information Technology Act, 2000.

“In order to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person must have published, transmitted, created material depicting children in a sexually explicit act or conduct. A careful reading of this provision does not make watching child pornography, per se, an offence under Section 67-B of Information Technology Act, 2000," the high court had said.

Even though the said section of the IT Act has been widely worded, it does not cover a case where a person has merely downloaded in his electronic gadget child pornography and watched the same without doing anything more, the High Court had said.

Admittedly, there were two videos involving minor boys that had been downloaded and were available on the mobile phone of the petitioner, and those were neither published nor transmitted to others and were within the private domain of the petitioner, it had said.

The High Court had, however, expressed concern over children watching pornography.

Viewing pornography can have negative consequences on teenagers down the line, affecting both their psychological and physical well-being, it had said.

"The Generation Z Children are grappling with this serious problem and instead of damning and punishing them, the society must be mature enough to properly advise and educate them and try to counsel them to get rid of that addiction. The education must start from the school level since exposure to adult material starts at that stage itself," the judge said.

The high court had advised petitioner S. Harish to attend counselling, if he was still afflicted with the addiction of watching pornography.

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