By Sanjeev Kumar Patro
Bhubaneswar: Sounding a death knell to the flourishing child pornography spread in the country, the Supreme Court today clearly ruled that even storing child pornographic material in digital devices like mobile or laptop/computers, without deleting or reporting, is a crime under the Protection of Children from Sexual Offences (POCSO) Act.
Setting aside the Madras High Court order that had said merely storing such sexual explicit content involving children without any intention to transmit the same does not constitute an offence under the POCSO Act.
The CJI-led 2 Judge bench held that storing such sexual explicit materials indicates the intention to transmit. And intention need to be gathered from the circumstances, the order ruled.
CJI Chandrachud hailed this a landmark judgment and thanked Justice Pardiwala for the order.
WHY LANDMARK?
This judgment is landmark for the following.
- Not only Madras HC, even the Kerala High Court had recently held that accidental or automatic downloading of child pornographic material does not constitute an offence under the IT Act.
- The ‘Landmark’ because the court has held that the act of viewing, distributing or displaying of any child pornographic material online (over internet) by an individual, will be construed as storing or possessing such sexual explicit material involving children, and this will attract the subsection 1 of Section 15 of POCSO act..
However, the bench clarified that online viewing/portraying/distributing of such material by an individual be considered as storage/possession, only when it is evident that the said person has a consistent degree of control over that material.
SC ON SECTION 15 OF POCSO ACT
As the entire case hinges on Section 15 of the POCSO Act, it’s important to take a look at the said section under the act.
* Basically, this section deals with punishment for storage of sexually explicit material involving child.
* It has three subsections.
* The first subsection lists penalty of Rs 5000 (in first instance) for storing such sexually explicit material involving child in digital devices, and not deleting or destroying or reporting the same, with an intention to share or transmit. Rs 10,000 penalty, if the offence made second time.
* The second lists an imprisonment of 3 years for storing, transmitting, sharing, except for the purpose of reporting or using as evidence in the court.
* The third details punishment of 5-7 year jail term for one who stores and avail commercially the sexual explicit content involving child.
JUSTICE PARDIWALA ON SECTION 15
- In the order, Justice Pardiwala said the three sub-sections in Section 15 are independent and address to 3 distinct offences.
- Justuce Pardiwal stated that the mens-rea (means intention) required under the sub section need to be gathered from actus-reus itself – means it need to be determined in what manner such material is stored or possessed and the circumstances under which the same was not deleted, destroyed or reported.
- It has made very clear that the evidence gathering must indicate sufficient grounds that the intention of storage is to transmit, and then only it will be considered an offence under POCSO Act.
WHERE MADRAS HC ERREED?
The SC today had set aside the Madras HC order calling it “egregious error”, means “shocking error” for the fact that the single judge order by Justice N Anand Venkatesh didn’t talk gathering evidence to find out intention of storing such child pornographic materials. On the contrary, it had ruled that mere storing doesn’t show any intention to transmit or such explicit materials.
SC BENCH DISAPPROVE ‘CHILD PORNOGRAPHY’
The apex court today disapproved the use of the word 'child pornography'. It has suggested that parliament should bring in an amendment to the POCSO Act to refer to such material as 'child sexual exploitative and abuse material', because the POCSO act carries the word “pornographic material involving child.”
The bench stated, "We have suggested an ordinance can be brought in. We have asked all courts not to refer to it as 'child pornography' in any orders."
MADRAS HC IMPUNGED ORDER
The Madras High Court order, which was set aside today by SC, had, however, highlighted the rise in porn addiction among the youth, and called for a measured approach to deal with this issue.
PORN ADDICTION IN INDIA
Last year National Human Rights Commission (NHRC) flagged the flourishing pornographic content spread in the country. Quoting a report, which stated circulation of a whopping 4.5 lakh child sexual abuse material in the country in 2023, the NHRC directed DGP of all states, DG, NCRB and Secy, Ministry of Electronics and IT to submit a detail report to the commission.
The circulation count is hardly surprising because, as per a study in Journal of Psychosexual Health in 2021, India ranks third among porn watching countries in the world, and in the same breath it had stated that India is 4th in high rape crime countries.
NCRB ON CHILD PORNOGRAPHY IN ODISHA
The judgment carries an important bearing on the State also. Because, till the year 2020, in the cases registered under transmitting/publishing of material depicting children in sexual explicit act or child pornography, Odisha was at the top in the country. The number of such cases in 2017 was mere 8, and zoomed to 542 in 2019, though in 2022 slumped to 47. The rate of crime, however, is still higher than national average, and in absolute cases figure among the top-10 states in the country. The NCRB report for 2023 is not yet published.
