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Synopsis

The Supreme Court on Friday reserved its order on “whether downloading & possessing child porn is a criminal offence”.

The question came before court in a review of the issue decided by Madras High Court in an  order of January 11, which states that under Section 14(1) of the Protection of Child from Sexual Offences Act, 2012, a child or children must have been used for pornography purposes and only watching child pornography video would not constitute an offence under the said Section.

The case concerns a 28-year old man who was charged in the year 2019 under Section 14 of the Protection of Children from Sexual Offences (Pocso) Act, 2012 and the Information Technology Act, 2000. The first information report (FIR) was lodged under Section 14 of the Pocso Act prescribing punishment for using a child for pornographic purposes and Section 67B of the IT Act. 
However, the January 11 order of the High Court viewed possessing pornographic content of children from an addiction lens and said that it was more to do with morality, while advising the 28-year old man to attend counselling, and thus quashed the case against him for downloading child pornography.

"Since he has not used a child or children for pornographic purposes, at the best, it can only be construed as a moral decay on the part of the accused person," the high court had held.

On Friday, while the bench said that the question to consider would be whether the act of possessing porn related to children was involuntary would require to be decided and whether it would be an offence, Chaturvedi told Court,
“Ignorance cannot be a defence in such cases as there is a presumption of culpability under the Pocso Act”.

A bench led by Chief Justice of India DY Chandrachud had on March 5, expressed shock at the order and said that it was “atrocious” that such an order could be passed, considering that the section is clear about what stipulated an offence under the law against child sex abuse.

The petition on which a notice was issued was filed by NGO’s Justice for Child Rights Alliance & Bachpan Bachao Andalon. The National Commission for Protection of Child Rights (NCPCR) has also assailed its order through an intervention, with Senior Advocate Swarupama Chaturvedi at the helm of arguments.

Senior Advocate HS Phoolka and Jasbir Singh said that according to the information received from US-based National Centre for Missing and Exploited Children (NC-MEC), having a collaboration with Indian government, the accused had been watching child pornography since the last two years and was an habitual offender.

The lawyer for the accused maintained that his client had received porn content on whatsapp and had neither circulated, nor modified it and thus, his role in the issue was involuntary.

The Madras Court said that regarding Section 67-B of the Information Technology Act, 2000, to constitute an offence under the Section, the accused person must have published, transmitted, or created material depicting children in sexually explicit act or conduct, which was not the case at hand.