Downloading child pornography is an offence
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There must be an appeal against a recent judgment of the Madras High Court in a case of the downloading of child pornography material

February 08, 2024 12:16 am | Updated 02:06 am IST

‘The purpose of enacting special Acts such as the POCSO Act and making special provisions in the IT Act is to protect children from sexual exploitation and punish people involved in different forms of exploitation’

‘The purpose of enacting special Acts such as the POCSO Act and making special provisions in the IT Act is to protect children from sexual exploitation and punish people involved in different forms of exploitation’ | Photo Credit: Getty Images/iStockphoto

Recently, the Madras High Court, in S. Harish vs Inspector of Police, quashed the judicial proceedings and held that downloading child pornography was not an offence under Section 67B of the Information Technology (IT) Act, 2000. The High Court categorically said that watching child pornography per se was not an offence as the accused had merely downloaded it onto his electronic gadget and had watched it in private.

The High Court also referred to a case decided by the Kerala High Court where it had been held that watching pornography in private space was not an offence under Section 292 of the Indian Penal Code (IPC). This case related to the quashing a criminal case registered against a youth in 2016 by the Aluva police as he had been watching pornographic material on his mobile phone on the roadside at night.

In this case, after investigation, the police had filed the final report and cognisance had been taken by the High Court under Section 14(1) of the Protection of Children from Sexual Offences (POCSO) Act, 2012 and Section 67B of the IT Act.

Section 67B(b) of the IT Act says that ‘whoever, - creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner’ shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees....’

Reading into a sub-clause

It is undisputed that two files pertaining to child pornography were downloaded and available on the mobile phone of the accused. The forensic science report also corroborated the presence of the two files. These facts are sufficient to attract the application of Section 67B(b) of the IT Act, but the High Court held that in order to constitute an offence, the accused must have published, transmitted, created material depicting children in sexually explicit act or conduct.

The High Court did not reproduce Section 67B in its judgment for justification. Section 67B has five sub-clauses, from (a) to (e). While sub-clause (a) talks about publishing or transmitting material depicting children engaged in sexually explicit act or conduct, sub-clause (b) deals with acts including downloading of child pornography material. Sub-clause (c) talks about cultivating, enticing or inducing children to [an] online sexually explicit relationship. Sub-clause (d) talks about facilitating abuse of children online and sub-clause (e) talks about recording abuse/a sexually explicit act with children.

Thus, the High Court reached its judgment without analysing all of Section 67B, and reading into sub-clause (b), which clearly delineates the act of the accused.

The flaw in citing a precedent

The High Court referred to a precedent, without mentioning details, i.e., title or year, of that case, where the High Court of Kerala dealt with the scope of Section 292 of the IPC and held that watching an obscene photograph or obscene videos by a person by itself was not an offence. The ratio of this case does not apply to the cases of child pornography, particularly the one under consideration.

A case decided by the High Court of Kerala in September 2023 (Aneesh vs State of Kerala) did not pertain to child pornography. While watching adult pornography in privacy has been held as not to be an offence under Section 292 of the IPC (both by the High Court of Kerala and the Supreme Court of India), downloading sexually explicit material pertaining to children is clearly an offence under the IT Act. In none of the cases so far has the constitutionality of Section 67B(b) been challenged and its vires held unconstitutional.

The Madras High Court used its inherent powers under Section 482 of the Criminal Procedure Code (CrPC) to prevent misuse of the process of court and quashed the judicial proceedings. The Supreme Court has laid down certain guidelines in State of Haryana vs Bhajan Lal (1992) to exercise powers under Section 482 of the CrPC (or extraordinary powers under Article 226) including that such powers could be used where the allegations made in the first information report or the complaint, even if taken at face value and accepted in their entirety do not, prima facie, constitute an offence or make out a case against the accused. Therefore, under the given facts and circumstances of the case, the Madras High Court could not in its wisdom quash the judicial proceeding when an offence was clearly made out under Section 67B(b) of the IT Act. However, it is agreed that the police had wrongly applied Section 14 of the POCSO Act as there was no evidence pertaining to the use of any child or children for pornographic purposes by the accused himself. Also, Section 15 of the POCSO Act punishes storage or the possession of child pornographic material only if it is done with an intent to share or transmit, or display or distribute, or for commercial purpose.

Remove the inconsistency

It is important to mention here that Section 67 read with Sections 67A and 67B of the IT Act are a complete code and the given acts are exclusively punishable under this code. This section was amended in October 2009 and, inter alia, even seeking or downloading child pornography made a specific offence. The purpose of enacting special Acts such as the POCSO Act and making special provisions in the IT Act is to protect children from sexual exploitation and punish people involved in different forms of exploitation.

The National Crime Records Bureau, Ministry of Home Affairs, under an agreement with the American National Center for Missing & Exploited Children, regularly gets geo-tagged CyberTipline reports to prosecute those who upload the child sexual abuse materials (CSAM) from anywhere in India. The use of the term CSAM is preferred because the term pornography implies consent which a child is not capable of giving. Therefore, it will be better if the term ‘child pornography’ is replaced with the term ‘CSAM’ in Indian laws. Similarly, the POCSO Act may also be amended and mere possession of CSAM be made a separate offence to remove inconsistency between the provisions of the POCSO Act and the IT Act. Finally, the State government must appeal against this judgment of the Madras High Court. Otherwise, it will set a bad precedent for the State.

R.K. Vij is a former Indian Police Service officer. The views expressed are personal

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