Supreme Court Gets Strict On Child Pornography
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
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By Sunil Garodia
First publised on 2024-09-25 03:19:33
About the Author
Editor-in-Chief of indiacommentary.com. Current Affairs analyst and political commentator. Author of Cyber Scams in India, Digital Arrest, The Money Trap and The Human Hack
View all posts by this Author
Landmark Judgment
The Supreme Court is spot-on in saying that watching 'child porn' is a crime under both the Pocso Act and the IT Act. There is no way that access to child pornographic material can be blocked completely. Technology has advanced and people devise ways to access the offensive material through various means. But the two Acts have provisions, as the court rightly pointed out, that can be interpreted to make such viewing a crime. Till now, courts had interpreted Section 15 of Pocso Act narrowly. But with this purposive interpretation, the Supreme Court, in a landmark judgment, has considerably widened the scope of the law.
Madras HC Judgment "Egregiously Erronous"
The decision came after NGO "Just Rights for Children Alliance" challenged a Madras HC order which acquitted a person for viewing child pornography on the premise that he had neither forwarded not circulated the offensive material in any way. Private viewing was held to be not criminal by the high court. But the NGOs advocate H S Phoolka argued that the order was "egregiously erroneous" and the Supreme Court accepted his argument. There were other conflicting judgments of high courts in respect of private viewing of child pornography. The Supreme Court judgement settles the matter by making it a crime.
Change The Term Child Pornography To CSEAM
The apex court called private viewing of child pornography an inchoate crime â a crime which is incomplete or preliminary but which captures (future) criminal intent. It also said that Parliament should seriously consider amending the Pocso Act to change the term 'child pornography' with CSEAM which the court said was 'child sexual exploitation and abusive material' which would capture the meaning and span of the crime more clearly. It also directed courts to abstain from using the term 'child pornography' and use CSEAM henceforth.
No Relief To Social Media Intermediaries
The court also did not grant any relief to social media intermediaries in this respect. It said that the 'safe habour' granted to them under the IT Act for third party material did not apply in these cases as the Pocso Act mandated that they take such material down immediately after reporting to the special juvenile police unit or the local police station or cyber crime portal, along with handing over of the material, including the source from which it originated. It, however, exempted criminal proceedings in cases where such material auto-downloaded (unknown to the user) on a user's device from any site without they carrying out anything express action to wilfully download it, with the condition that storage of such downloaded material on one's device (after coming to know about it) will be considered a crime. The person will have to report the material to the police and destroy it from their device.
Strong Verdict
The court also made it clear that even if a person who has downloaded such offensive material for private viewing destroys it before an FIR is filed, he cannot escape prosecution because the crime had been committed and the timing of registrating the FIR will be immaterial in such cases. This is a very strong verdict covering all aspects of the crime of viewing, storing and circulating child pornography that will go a long way in ensuring that the dignity of children is not degraded.
