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Child Pornography is punishable under POCSO Act

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Recently, lawmakers updated India’s laws to protect children from sexual crimes and address serious issues like child pornography. They created the Protection of Children from Sexual Offences (POCSO) Act to protect kids and ensure the law handles these cases in a way that’s sensitive to children.

On September 23, 2024, two judges, Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala, made an important decision. They stated that it is a crime to look at, keep, or save pictures or videos of kids involved in sexual activities. Moreover, this law applies even if the pictures or videos are not shared with anyone. The judges emphasized that the law isn’t only about creating or sharing harmful material. Furthermore, it is also about stopping people from watching or keeping these terrible images. As a result, this ruling is an important step to keep kids safe. Additionally, it also aims to punish people who try to harm them.

The Supreme Court’s Landmark Decision on Child Pornography

The Supreme Court’s decision resolved a long-standing disagreement among different High Courts. It was about simply “storing” child pornography could be considered a crime under the POCSO Act and the Information Technology Act (IT Act). The Court overturned the Madras High Court’s ruling in the case S Harish v Inspector of Police and Another (2024). In that case, the Madras High Court dismissed criminal charges. It was argued that downloading child pornography was not a punishable offense under the POCSO Act. Additionally, watching child pornography was also not considered a punishable offense under the IT Act. However, the Supreme Court clarified that storing, viewing, or possessing child pornography is a punishable offence under these laws.

The Supreme Court made an important decision to clear up a big question about whether just “storing” child pornography is a crime under the POCSO Act and the Information Technology Act (IT Act). Prior to this, different courts in India had different opinions. In particular, the Supreme Court disagreed with the Madras High Court in the case S Harish v Inspector of Police and Another (2024). Initially, the Madras High Court stated that just downloading or watching child pornography wasn’t a crime. However, the Supreme Court ruled that even keeping, watching, or storing such harmful material is a crime. This ruling applies under two key laws: the POCSO Act and the Information Technology Act. Specifically, the POCSO Act protects children from sexual offenses. Therefore, the decision clarifies that anyone who keeps or views these harmful materials can be punished.

Strengthening Child Protection and Legal Terminology

This Supreme Court ruling reinforced the legal framework for child protection. As a result, the law treats activities such as viewing, possessing, and distributing child pornography as serious offences. Furthermore, the ruling emphasizes that these actions contribute to the exploitation and abuse of children. Therefore, the law must respond accordingly to address such crimes. The Court’s decision also clarifies the legal position, making the POCSO Act more effective in addressing the growing threat of child sexual exploitation online.

In addition, the Supreme Court’s ruling highlighted an important aspect of criminal law known as the presumption of culpable mental state. Specifically, this means that in any POCSO offense, once the victim establishes the basic facts—such as possession of child pornography—the accused must prove their innocence. Consequently, the burden of proof lies with the accused. Thus, they must prove their innocence, rather than the prosecution having to prove their guilt.

Additionally, Justice Pardiwala suggested a change in terminology to better reflect the severity of the crime. He proposed replacing the term “child pornography” with “child sexual exploitative and abuse material” (CSEAM). This term, he argued, more accurately conveys the gravity of the crime. He urged Parliament to amend the POCSO Act to include this new terminology, addressing the issue with the seriousness it deserves.

Madras High Court Ruling

The Madras High Court’s ruling in the case of S. Harish has sparked widespread criticism and was ultimately overturned by the Supreme Court of India.

Background

On January 29, 2020, Tamil Nadu police filed a First Information Report (FIR) against S. Harish after a Cyber Tipline flagged him as an “active consumer” of child pornography. A forensic examination of his phone revealed that he recorded two videos showing child exploitation, both filmed locally in Tamil Nadu.

Issue

In September 2023, authorities formally charged Harish. He was charged under Section 15(1) of the Protection of Children from Sexual Offences (POCSO) Act. Additionally, he was charged under Section 67B of the Information Technology (IT) Act. These charges were for possessing and potentially engaging with child pornography.

Judgment by Madras High Court (January 2024)

In January 2024, the Madras High Court dismissed the criminal proceedings. The court ruled that “mere possession or storage” of child pornography was not an offense under the POCSO Act. Additionally, it argued that Section 67B of the IT Act only criminalizes the transmission, publication, or creation of such material. The court stated that it did not apply to merely watching or downloading the material. Furthermore, the court suggested that society should, instead, focus on educating children about pornography rather than punishing individuals for viewing it.

Supreme Court’s Intervention (March 11, 2024)

On March 11, 2024, the Supreme Court of India took up an important case. This case had caused widespread concern after the Madras High Court ruled that downloading and possessing child pornography were not punishable. Many people saw this judgment as a serious mistake. It prompted an appeal from the NGO Just Rights for Children Alliance. There was also a public outcry. Chief Justice D.Y. Chandrachud called the Madras High Court’s ruling “atrocious.” He warned that it could mislead the public into thinking such crimes were not serious.

Supreme Court’s Landmark Ruling (September 23, 2024)

In response, the Supreme Court intervened. On September 23, 2024, the Court overturned the High Court’s decision. It issued a landmark ruling. The Court stated that viewing, storing, and downloading child pornography are punishable under the Protection of Children from Sexual Offences (POCSO) Act. Furthermore, these actions are also punishable under the Information Technology (IT) Act.

Clarification on Section 15 of the POCSO Act

The Court’s ruling provided clear guidance on Section 15 of the POCSO Act. It clarified that Section 15 outlines three separate offences:

  1. Failing to delete or report child pornography in one’s possession.
  2. Transmitting or distributing child pornography.
  3. Possessing child pornography with commercial intent.

The Court made it clear that merely possessing such material without reporting it is a criminal offense. It emphasized that the intent of the accused can be inferred from their actions. Additionally, the Court affirmed that the provisions of the POCSO Act are independent. This means that even if one part of the law does not apply, others can still be enforced.

Expansion of Section 67B of the IT Act

The Supreme Court expanded Section 67B of the IT Act. It now criminalizes the creation, distribution, possession, and consumption of child pornography. The judgment also reinforced the presumption of a “culpable mental state” under Section 30 of the POCSO Act. This shifts the burden of proof to the accused once the prosecution proves basic facts.

Critique of the Term “Child Pornography”

One of the most notable parts of the judgment was the Court’s critique of the term “child pornography.” The Court felt that this term trivialized the crime. Justice Pardiwala suggested using the term “child sexual exploitative and abusive material” (CSEAM) instead. He believed this term would better reflect the gravity of the offence. Justice Pardiwala also called on Parliament to amend the POCSO Act accordingly.

Role of Social Media Intermediaries

The Supreme Court also addressed the role of social media intermediaries. It emphasized that they have a legal obligation to report any child exploitation material they come across. If they fail to do so, legal consequences will follow.

Call for Sex Education and Public Awareness Campaigns

In a proactive move, the Court directed the Ministry of Women and Child Development to introduce comprehensive sex education programs. Moreover, it also called for public awareness campaigns. These campaigns aim to educate society on the severity of child sexual exploitative and abusive material.

Significance of the Judgment

This judgment represents a significant shift in India’s approach to combating child exploitation. It makes it clear that no one is above the law when it comes to child sexual abuse material. Moreover, the judgment strengthens child protection laws. It ensures more rigorous enforcement and sets a precedent for future legal measures aimed at safeguarding children

Conclusion

The Supreme Court’s ruling strengthens child protection laws in India. It makes clear that any involvement with child pornography, such as viewing, storing, or possessing it, is a serious crime. Consequently, the ruling ensures that these actions are treated strictly under the law. This decision effectively closes any legal gaps that may have previously allowed for leniency. By clarifying that such actions are punishable under the law, the decision aims to prevent misconceptions. Otherwise, these misconceptions could contribute to an increase in demand for such material. This, in turn, could further harm children.

The Supreme Court recommended changing the term “child pornography” to “child sexual exploitative and abusive material” (CSEAM). This change aims to use clearer and more sensitive language. Furthermore, it helps show how serious the crime is. As a result, this makes the law easier to understand. In the end, this decision makes laws stronger to protect children in India. It ensures that anyone involved with child pornography will face serious consequences. Ultimately, this helps keep children safe from harm and exploitation..

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