Today, the Supreme Court of India held that storage of child pornographic material is an offence under the Protection of Children from Sexual Offences Act (POCSO Act).
The division bench of CJI DY Chandrachud and Justice JB Pardiwala set aside the decision of the decision of Madras High Court, in which the Court held that downloading and viewing child pornography, without any intention to transmit, is not an offence.
Section 15 of the POCSO provides for three distinct offences that penalise either the storage or possession of any child pornographic material when done with any intention to transmit, diplay etc as specified in sub-sections of the Section.
"There must be intention on part of the accused to share such material. To constitute an offence under section 15(2) of POCSO, there must be something more to show that the actual transmission or distribution of such material. Facilitation of such transmission, preparation, set up to enable transmit etc has to be there. Mens rea has to be found from the storage of such pornographic material. To establish offence under Section 15(3), apart from storage of child pornographic material, it has to be shown that such storage was done to make some gain or advantage," the Court held.
Further, the Court mentioned 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 sexually abusive and exploitative 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 said order was passed in an appeal filed by NGO Just Right for Children Alliance challenging the decision of the Madras High Court. Justice N Anand Venkatesh mentioned 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.
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