Watching, storing child pornography offence under Pocso Act: Supreme Court

The Supreme Court also recommended a shift in terminology from 'child pornography' to 'child sexually abusive and exploitative material'

The Supreme Court on Monday ruled that storing or viewing child pornography on digital devices can be an offence under the Protection of Children from Sexual Offences (Pocso) Act, 2012, if there is an intention to gain or benefit from it, reported Bar and Bench.

A bench led by Chief Justice of India DY Chandrachud, along with Justice JB Pardiwala, overturned a Madras High Court ruling that held private viewing of child pornography without distribution was not an offence. The Supreme Court clarified that for an Act to constitute a crime under Section 15 of the Pocso Act, there must be evidence of intent to distribute, transmit, or otherwise facilitate the sharing of such material. Merely storing such content without further intent may not meet the threshold for criminal liability.

The court emphasised that ‘mens rea” (criminal intent) is key in determining whether the storage of child pornographic material constitutes an offence. To prove guilt under Section 15(3) of the Pocso Act, there must be clear intent to use the material for personal gain or advantage, beyond mere possession.

In its judgement, the Supreme Court urged lawmakers to amend the Pocso Act, suggesting that the term “child pornography” be replaced with “child sexually abusive and exploitative material”. The Court further recommended an ordinance to this effect and directed lower courts to refrain from using the term ‘child pornography’ in their rulings.

The ruling came in response to an appeal by NGO Just Right for Children Alliance, challenging a 2021 Madras High Court decision. The High Court had acquitted S Harish, who had been charged under the Pocso Act and the Information Technology (IT) Act for downloading and watching child pornography videos on his mobile phone. Justice N Anand Venkatesh of the Madras High Court ruled that watching child pornography in private did not amount to an offence under the Pocso Act or IT Act.

The Madras High Court ruling, which highlighted the issue of growing porn addiction among youth and called for a balanced approach, had drawn sharp criticism. During its March hearing, the Supreme Court called the High Court’s observations ‘atrocious’.

This case also brings into focus a related ruling by the Kerala High Court, which held that accidental or automatic downloading of child pornographic material does not constitute an offence under the Information Technology Act.

In a related matter, the Supreme Court in 2022 had declined to entertain a petition that sought directions for the Bureau of Police Research and Development (BPRD) to collect data establishing a link between the viewing of pornographic material and the commission of sexual offences.