SC to review HC ruling that downloading child porn is not an offence under POCSO
Terming as “atrocious”, the Supreme Court on Monday agreed to hear a plea challenging a Madras High Court ruling which said that mere downloading and watching child pornography is not an offence under the POCSO Act and the Information Technology law.
The High Court had, on January 11, quashed the criminal proceedings against a 28yearold man charged with downloading on his mobile phone pornographic content involving children.
The presentday children are grappling with the serious issue of watching porn and instead of punishing them, society must be “mature enough” to educate them, it had also said.
A Bench comprising Chief Justice DY Chandrachud and justices JB Pardiwala and Manoj Misra took note of the submissions of senior advocate H S Phoolka, appearing for two petitioner organisations, that the High Court judgment was contrary to the laws. “This (the High Court judgment) is atrocious. How can a single judge say this? Issue notice returnable in three weeks,” the CJI said.
LEGAL CONTROVERSY
A senior lawyer appeared for two petitioner organisations — ‘Just Rights for Children Alliance’ of Faridabad and New Delhibased ‘Bachpan Bachao Andolan’. The NGOs work for the welfare of children.
The top court also sought the response of S Harish, a resident of Chennai and the two police officers concerned with Tamil Nadu.
The High Court had quashed the criminal case against Harish under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Information Technology Act, 2000.
“To constitute an offence under Section 67B of IT Act, 2000, the accused person must have published, transmitted, or created material depicting children in a sexually explicit act or conduct. A careful reading of this provision does not make watching child pornography, per se, an offence under Section 67B of IT Act, 2000,” the High Court had said.
Admittedly, there were two videos involving minor boys that had been downloaded and were available on the mobile phone of the petitioner and those were neither published nor transmitted to others and were within the private domain of the petitioner, it had said.
The High Court had, however, expressed concern over children watching pornography. Viewing pornography can have negative consequences on teenagers down the line, affecting both their psychological and physical wellbeing, it had said.
“The Generation Z Children are grappling with this serious problem and instead of damning and punishing them, the society must be mature enough to properly advise and educate them and try to counsel them to get rid of that addiction. The education must start from the school level since exposure to adult material starts at that stage itself,” the judge said.