Recently, the Supreme Court (SC) has strengthened the law regarding child pornography, stating that even viewing, possessing, or failing to report such content is punishable under the Protection of Children from Sexual Offences (POCSO) Act 2012, regardless of whether it is shared or transmitted further.
This ruling overturned a decision made by the Madras High Court earlier this year, in which a single-judge Bench had dismissed criminal proceedings against a 28-year-old man who had downloaded two child pornographic videos on his phone.
In a comprehensive 200-page judgment, a Bench led by Chief Justice of India D Y Chandrachud and Justice J B Pardiwala provided a strict interpretation of what constitutes the offense of “storage of child pornography.”
The Bench broadened the interpretation of Section 15 of the POCSO Act, which pertains to the “Punishment for storage of pornographic material involving a child.”
Background of the Case
- On 11th January 2024, the Madras HC quashed the criminal proceedings against a man charged with downloading and possessing child pornography on his mobile phone.
- The First information Report (FIR) filed against the accused only mentioned Section 14 of Protection of Children from Sexual Offenses (POCSO) Act, 2012 which punishes using children for “pornographic purposes”, and the offences under Section 15 were added in subsequent chargesheets.
- However, the High Court confined it’s ruling to Section 14 alone and held that “mere possession” child pornography would not violate the provision “since he has not used a child or children for pornographic purposes”.
- The court also held that the offences under the POCSO Act could only be made out if the accused had transmitted or published the material, and there was no evidence to suggest that this took place.
Supreme Court’s (SC) Verdict
- The SC has widened the scope of "possession" in child pornography cases to include situations where a person may not have physical possession of the material but has "the power to control it and is aware of exercising such control." This concept, known as "constructive possession," means that actions like viewing, distributing, or displaying child pornographic material are considered as being in the accused's possession under Section 15.
- Justice Pardiwala provided examples to explain this. For instance, if someone, 'A,' regularly watches child pornography online but does not download or store it, 'A' would still be deemed in possession of the material. This is because while watching, 'A' exercises control over it—such as sharing, deleting, or adjusting the video settings. Since 'A' voluntarily watches the material, they are said to have knowledge and control over it.
- In another example, if 'A' receives a link from 'B' that leads to a child pornographic video and closes it immediately, 'A' is no longer in constructive possession of the material. However, simply closing the link does not clear 'A' of responsibility.
- To avoid liability, 'A' must report the content to the authorities. Failure to do so can result in a fine of at least five thousand rupees, with repeat offenses attracting a fine of at least ten thousand rupees.
- The court also held that the offence under Section 15 will apply even if the accused does not have physical possession of child pornography at the time when the FIR is filed.
- Charges can be made if it is established that the accused possessed child pornographic material “at any point”. The court said that if a person “immediately after storing and watching child pornography in his mobile phone deletes the same before an FIR could be registered” could still be found liable under Section 15.
Earlier Interpretation of Section 15 under POCSO Act
- Initially, the provision was limited to cases where an individual stored child pornographic material “for commercial purposes.” However, in 2019, the POCSO Act was amended to introduce three related offenses under Sections 15(1), (2), and (3), each carrying progressively severe penalties—from fines to three to five years in prison. These offenses target:
- Any individual who stores or possesses pornographic material involving a child and fails to delete, destroy, or report it to the designated authority, intending to share or transmit child pornography;
- Any individual who stores or possesses child pornographic material for the purpose of transmitting, propagating, displaying, or distributing it at any time, except for reporting purposes or for use as evidence in court;
- Any individual who stores or possesses child pornographic material for commercial purposes.
- Justice Pardiwala, in the court's ruling, referred to these as “inchoate” offenses—those that indicate anticipation or preparation for a subsequent criminal act. The court clarified that Section 15 is not confined to punishing the act of sharing or transmitting child pornographic material but can also penalize the “intent” to commit such an act.
- The law, as interpreted by the court, penalizes “overt steps” taken toward committing a crime rather than merely harboring the thought of an offense. For example, the court determined that a failure to “delete, destroy, or report” child pornography allows for an “indirect” inference that the individual intended to share or distribute it under Section 15(1).
How will such cases be registered?
- The court stated that the intention of an accused can be assessed based on how the material is stored or possessed, as well as the circumstances surrounding its failure to be deleted, destroyed, or reported. From these actions and conditions, the court will establish the mens rea, or intention, of the accused.
- Additionally, the court advised police and courts against limiting their investigation to only one of the sub-sections under Section 15. Even if an offense under one sub-section is not established, the court emphasized that police and courts should not "jump to the conclusion" that no offense exists at all. Instead, they should examine whether an offense has been committed under one of the other sub-sections.
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