The Supreme Court on Monday ruled that merely watching and storage of pornography involving child on digital devices can be an offence under the the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) if the person concerned had the intention to share or transmit the same or had the intention to make commercial gains using the same. [Just Right for Children Alliance and Anr v S Harish and Ors]

A Bench of Chief Justice of India (CJI) DY Chandrachud with Justice JB Pardiwala overturned a Madras High Court ruling in this regard and explained the degree of mens rea (intention) required for such an act to constitute an offence under Section 15 of the POCSO Act.

The Court explained that Section 15 of the POCSO Act creates three distinct offences.

- Sub-section (1) of Section 15 penalizes the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same. The 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. To constitute an offence under this provision the circumstances must sufficiently indicate the intention on the part of the accused to share or transmit such material.

- Section 15 sub-section (2) penalizes both the actual transmission, propagation, display or distribution of any child pornography as-well as the facilitation of any of the abovementioned acts. To constitute an offence under Section 15 sub-section (2) apart from the storage or possession of such pornographic material, there must be something more to show i.e., either (I) the actual transmission, propagation, display or distribution of such material OR (II) the facilitation of any transmission, propagation, display or distribution of such material, such as any form of preparation or setup done that would enable that person to transmit it or to display it. The mens rea is to be gathered from the manner in which the pornographic material was found to be stored or in possession and any other material apart from such possession or storage that is indicative of any facilitation or actual transmission, propagation, display or distribution of such material.

- Section 15 sub-section (3) penalizes the storage or possession of any child pornographic material when done for any commercial purpose. To establish an offence under Section 15 sub-section (3), besides the storage or possession of the pornographic material involving a child, there must be some additional material or attending circumstances that may sufficiently indicate that the said storage or possession was done with the intent to derive any gain or benefit. To constitute an offence under sub-section (3) there is no requirement to establish that such gain or benefit had been actually realized.

As per the Bench, any act of viewing, distributing or displaying any child pornographic material by a person over the internet without any actual or physical possession or storage of such material in any device or in any form or manner would also amount to ‘possession’ in terms of Section 15 of the POCSO, provided the said person exercised an invariable degree of control over such material, by virtue of the doctrine of constructive possession.

The Court also deprecated the use of the word 'child pornography' and suggested that the parliament should bring in an amendment to the POCSO Act to refer to such material as 'child sexual exploitative and abuse material'.

"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," the apex court held.

The order was passed in an appeal filed by NGO Just Right for Children Alliance against the High Court ruling which held that watching child pornography in private does not constitute an offence

By that verdict, Justice N Anand Venkatesh had held that merely downloading or watching child pornography on one’s personal electronic device does not constitute an offence under the POCSO Act and the IT Act.

The High Court had made the observations while quashing proceedings initiated against one S Harish, who had been booked under the POCSO Act and the IT Act for having downloaded and viewed two child pornography videos on his mobile phone.

The High Court had highlighted the rise in porn addiction among the youth, and called for a measured approach to deal with the issue.

This led to the appeal before the apex court.

While hearing the case in March, the Supreme Court had said the observation by the High Court was "atrocious".

The Kerala High Court recently held that accidental or automatic downloading of child pornographic material does not constitute an offence under the Information Technology Act.

In 2022, the Supreme Court had refused to entertain a petition seeking directions to the Bureau of Police Research and Development (BPRD) to collect data for revealing a link between the viewing of pornographic material and the commission of sexual offences.

Senior Advocate HS Phoolka appeared for the appellant-NGO.

Senior Advocate Swarupama Chaturvedi appeared for the National Commission for Protection of Child Rights.

Advocate Prashant S Kenjale appeared for the accused.

Advocate D Kumanan appeared for the State of Tamil Nadu.

[Read judgment]