SC : Possession and viewing of Child Pornography an offence under POCSO, IT Act

A division bench headed by Chief Justice of India on 23rd September observed that the acts of “storing, distributing, displaying, downloading” is an offence under Section 15 of the Prevention of Children from Sexual Offences Act (POCSO) and Section 67B of the Information Technology Act. 

India by bringing in this judgement has removed itself from the list of 138 countries where possession of Child Pornography is not a Crime (ICMEC Study). In 2020, Tamil Nadu Police arrested one S. Harish under Sec 15(1) of the POCSO Act which dealt with viewing, distributing, downloading of Child Pornography. However, The Madras High Court in this case observed that mere possession of such content is not an offence under Section 15 of the POCSO Act. It also did not form a crime under the Section 67B of the Information Technology Act since it only deals with “transmission, publication and creation” of such content. Pursuant to this, Just Rights for Children Alliance brought an appeal challenging it.

In this Judgement, the apex court has clarified that Section 15 of the POCSO Act penalised three distinct offences. Section 15(1) penalises failure to delete or destroy or report the same to the designated authority. Section 15(2) penalises transmitting or propagating or displaying or distributing in any manner. Section 15(3) penalises storing or possessing pornographic material in any form involving a child for commercial purpose. The court clarified that if a person is in possession of such content then it shows failure to report or destroy or delete which is an offence Section 15(1). The court also laid emphasis on gathering the intention(mens rea) of the accused behind the act. The court mentioned that Section 67B of the IT Act also penalises possession and consumption of such content.

Justice Pardiwala said that the term “Child Pornography” should not be used as “Pornography” implies a consensual act and it takes the victimisation of the child out of it. Instead the term “Child Sexual Exploitive and Abuse Material” is more appropriate for this heinous crime.