Viewing, not just storing, child pornography is criminal under POCSO: SC

The Supreme Court on Monday overturned a Madras High Court ruling that had declared downloading and watching child pornography as non-punishable under the Protection of Children from Sexual Offences (POCSO) Act, 2012, and the Information Technology (IT) Act, 2000.

The apex court clarified that such acts are indeed criminal offences under both laws, reinforcing the legal framework around the protection of children from exploitation in digital spaces.

The ruling was delivered by a bench led by Chief Justice of India D Y Chandrachud, along with Justices J B Pardiwala and Manoj Misra. They emphasised that watching and downloading child pornography amount to significant violations under the POCSO and IT Acts, and suggested that the terminology in the POCSO Act be updated. The court proposed replacing the term "child pornography" with "child sexual exploitative and abusive material" to better reflect the nature of the crime.

Additionally, the Supreme Court recommended that an ordinance be introduced to enact these amendments and called on all lower courts to refrain from using the term "child pornography" in future legal proceedings. The bench also issued guidelines for addressing child pornography and outlined the legal consequences for involvement in its production, distribution, and viewing.

The case reached the Supreme Court after two child welfare NGOs challenged a Madras High Court judgement that had quashed criminal proceedings against a 28-year-old man from Ambattur. The man had been charged under the POCSO and IT Acts for downloading child pornography videos. In its April 19 hearing, the High Court had ruled that merely watching child pornography, without further action, did not constitute a criminal offence. This led to widespread criticism and an appeal to the apex court.

In its judgement, the Supreme Court delved into Section 15 of the POCSO Act, which outlines three key offences related to child pornography. The court explained that possession of child pornography becomes a crime when the intent to distribute, share, or transmit the material is evident. Additionally, even storing such material for commercial purposes falls under criminal liability, irrespective of whether the material is distributed or viewed by others.

The bench further elaborated on the concept of "constructive possession," noting that simply viewing child pornography over the internet without storing it on a personal device could also be considered possession if the individual has control over the material.

The ruling also criticised the Madras High Court’s earlier observations, describing them as "atrocious." In particular, the High Court had argued that downloading or watching child pornography on a private electronic device did not qualify as an offence under the existing laws. The Supreme Court’s decision, however, categorically stated that such activities are illegal and must be met with strict legal consequences.

In a related case, the Kerala High Court had previously ruled that accidental downloading of child pornography does not constitute an offence under the IT Act.