Viewing child porn punishable under POCSO, IT laws, says Supreme Court

Section 15 of the POCSO Act penalises storage of child pornography with an “intention to share or transmit” it.

The Court interpreted “possession” to also mean “constructive possession”, which is beyond physical control to situations “where an individual has the power and intention to control the contraband, even if it is not in their immediate physical possession”. While “viewing the images on the screen, did the person have the ability to print them, save them, forward them or delete them. If he did, then he can be said to have knowingly exercised custody or control over those images,” the Court said.

In its 200-page ruling, a two-judge bench, of Chief Justice of India DY Chandrachud and Justice J B Pardiwala, held that “mens rea or the intention required under this provision is to be gathered from the actus reus itself i.e., it must be determined from the manner in which such material is stored or possessed and the circumstances in which the same was not deleted, destroyed or reported.”

The Court was hearing appeals against a Madras High Court ruling which said that “mere possession” and downloading or viewing of child pornographic content without an intent to further share it would not constitute an offence. On January 11, 2024, the High Court had quashed criminal proceedings against a 28-year-old man charged with downloading pornographic content involving children on his mobile phone.

The top court termed the HC verdict “egregious” on the issue and set it aside. The accused will now face trial in the court of Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District.

The SC verdict emphasises that failure to report child pornographic content even when it is received unknowingly is an offence. This failure “to delete or destroy or report” carries a fine under Section 15 (1) of the POCSO Act.

“For instance, say, ‘A’ is sent an unknown link by ‘B’, which upon clicking opened a child pornographic video on the phone of ‘A’. Now if ‘A’ immediately closes the link, although once the link is closed ‘A’ is no longer in constructive possession of the child pornography, this by itself does not mean that ‘A’ has destroyed or deleted the said material by merely closing the link. ‘A’ will only be absolved of any liability if he after closing the link further reports the same to the specified authorities,” the SC said.

The ruling also states that an accused can be booked under the provision even if such “storage” or “possession” does not exist at the time of registration of an FIR or any criminal proceeding. Essentially, simply deleting the material later on will not absolve the offender.

“The provision of Section 15 is not fixated on any particularly time-frame,” the SC said.

“We say so because, any other view aside from the above, in our opinion would lead to a chilling effect with drastic consequences, whereby the provisions of the POCSO may be defeated by a devious person. If, for instance, a person immediately after storing and watching child pornography in his mobile phone deletes the same before an FIR could be registered, could it be said that the said person is not liable under Section 15,” the ruling added.

The ruling cautioned courts “to refrain from showing any form of leniency or leeway in” this, “particularly to schools/educational institutions, special homes, children’s homes, shelter homes, hostels, remand homes, jails, etc. who failed to discharge their obligation of reporting the commission or the apprehension of commission of any offence or instance of child abuse or exploitation under the POCSO”.

The court pointed out that it has been brought to its notice that social media intermediaries do not report such cases of child abuse and exploitation to the local authorities specified under POCSO Act and warned that they cannot claim exemption from the liability under Section 79 of the IT Act which says they “shall not be liable for any third party information, data, or communication link made hosted by him…unless due diligence is conducted by it and compliance is made…”.

The bench added: “Such due diligence includes not only removal of child pornographic content but also making an immediate report of such content to the concerned police units in the manner specified under the POCSO Act and the Rules thereunder”.

The SC verdict also called upon Parliament to “seriously consider” an amendment to the POCSO Act to substitute the term “child pornography” with “child sexual exploitative and abuse material” (CSEAM) to “reflect more accurately on the reality of such offences”. The Centre, it added, may “consider to bring about the suggested amendment to the POCSO by way of an ordinance”. The ruling also directed courts to not use the term “child pornography” in any judicial order or judgment, and asked them to use CSEAM instead.

The bench said the term CSEAM more accurately reflects the reality that these images and videos are “not merely pornographic but are records of incidents, where a child has either been sexually exploited and abused or where any abuse of children has been portrayed through any self-generated visual depiction”.

Section 15 of POCSO prescribes a graded punishment in its three-sub sections ranging from fines to an imprisonment of upto three to five years. The ruling cautioned police and courts to be “mindful…that while examining any matter involving the storage or possession of any child pornography, it finds that particular sub-section of Section 15 is not attracted, it must not jump to the conclusion that no offence at all is made out.” Instead, the police must “try to ascertain that if offence is not made out in one particular sub-section, whether the same is made out in the other two subsections or not,” the SC said.