SC Overturns Madras HC Verdict; Storage Of Child Pornography An Offense Under POCSO Act

In a landmark judgement, the Supreme Court on Monday held that downloading, storing, and watching child pornographic material without deleting or without reporting would indicate an intention to transmit, and hence constitute an offence under the Protection of Children from Sexual Offences Act (POCSO Act). By the latest verdict, the top court overturned an earlier Madras High Court ruling, which observed that mere storage of child pornographic material without any intention to transmit the same was not an offence under the POSCO Act.

The apex court said that by quashing the criminal proceedings, the High Court ‘committed an egregious error.’ The Madras High Court had pointed out several grounds including that the accused only downloaded the material for private viewing and it was not transmitted, to conclude that the act would not be an offence under Section 67-B of the Information Technology Act, 2000 while delivering a judgement in 2021.

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While stating its verdict, the Supreme Court on Monday further suggested that parliament bring a law amending the POCSO Act to replace the term “child pornography” with “Child Sexual Exploitative and Abusive Material”.  It also directed all courts not to use the term “child pornography.

While delivering the verdict, Justice Pardiwala read out the conclusions, asserting that Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material “when done with any intention to transmit, display etc.

“It is in the nature and form of an inchoate offence, which penalises the mere storage or possession of any pornographic material involving a child when done with the specific intent prescribed thereunder without requiring any actual transmission, dissemination etc,” the court said, adding that the Sub-section (1) of Section 15 penalises the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession with any person to share or transmit the same.

Read Also: Watching Pornographic Content In Private Is Not An Offence: Kerala High Court

The verdict comes in a petition filed by Just Rights for Children Alliance, a coalition of NGOs, which flagged concerns over the potential impact of the 2021 Madras High Court ruling on child welfare. 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.

The Kerala High Court had also held a similar observation that accidental or autormatic downloading of child pornography does not constitute an offence.