SC reserves order if downloading or watching child pornography offence

New Delhi: The Supreme Court on Friday reserved its judgement in the appeal against a Madras High Court order holding that merely downloading and or watching child pornography on one's electronic device did not constitute an offence under the POCSO and the IT Act.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala observed that merely downloading or watching child porn may not be an offence but certainly, child being used in pornography will be an offence.

The Madras High Court had on January 11 quashed the criminal case against a 28-year-old man, S Harish, charged by the prosecution for downloading and watching on his mobile phone some pornographic content involving children.

The High Court had quashed the criminal case against Harish under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Information Technology Act, 2000.

The HC had granted relief to Harish on the ground that to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person (Harish) must have published, transmitted, created material depicting children in a sexually explicit act or conduct. A careful reading of this provision does not make watching child pornography, an offence under the said Section. 

NGO, Just Right for Children Alliance, which worked for the welfare of children, filed a plea in the apex court setting aside the HC order and sought appropriate directions against the accused Harish. 

Harish also submitted that when this clip came to him, it was June 14, 2019, and Section 8 was amended on August 16, 2019.

To this, the CJI pointed out and clarified that but there has to be an intention to distribute the content, in this case he got a clip from someone. 

The apex court also said that the receipt of the video was not violative of Section 15 of POCSO Act. But if someone continue to watch it and breach the section with an intent to distribute it then it is a violation. 

The accused, Harish, the Respondent in the case, in is defence said that there was auto download in WhatsApp.

Senior advocate Swarupama Chaturvedi, appearing for the National Commission for Protection of Child Rights (NCPCR), had filed an intervention application said that we have filed our intervention. We have to implement the law. 

The apex court asked her to file her written submissions by Monday.

The NGO, led by senior H S Phoolka submitted before court that the tip came from home ministry to the district police, and it was scanned by a foreign organisation who tracks such internet downloads of child porn. For two years the person was watching child pornography, he claimed.