The Supreme Court recently agreed to examine a plea challenging the judgment of the Madras High Court related to downloading and watching child pornographic content privately. The High Court had ruled that this does not constitute an offence under the POCSO Act. However, the top court termed the ruling “atrocious”

By Dr Swati Jindal Garg

One of Gandhi’s famous monkeys symbolised: “See no Evil”. Apparently, the saying still holds true. The Madras High Court recently quashed the criminal proceedings against a 28-year-old man charged with downloading on his mobile phone pornographic content involving children. The High Court reasoned that to qualify as an offence under the Protection of Children from Sexual Offences Act (POCSO) and the Information Technology (IT) Act, the accused must have created, published and transmitted the material. And in relation to the IT Act, the High Court said that the relevant section did not cover cases where an individual only downloaded and watched content, without doing more. However, the apex court said the ruling was “atrocious”, and agreed to hear a plea challenging the same.

Slamming the single-judge ruling by the High Court, Chief Justice of India DY Chandrachud said: “How can the single judge say this?” as a bench led by him and also comprising Justices JB Pardiwala and Manoj Misra took note of the submissions made by a senior advocate that the High Court judgment was contrary to the laws. The senior advocate was appearing for two petitioner organisations, namely Just Rights for Children Alliance of Faridabad and the New Delhi-based Bachpan Bachao Andolan, both of which work for the welfare of children. 

The High Court had quashed a criminal case against S Harish, against whom the police had filed the final report after investigation and cognisance had been taken by the High Court under Section 14(1) of the POCSO and IT Act, 2000. Harish was reportedly charged with downloading on his mobile phone pornographic content involving children. “To constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person must have published, transmitted, 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 67-B of Information Technology Act, 2000,” the High Court ruled.

The High Court had, however, expressed concern over children watching pornography, stating that viewing pornography can have negative consequences on teenagers down the line, affecting both their psychological and physical well-being. The High Court also suggested a more nuanced approach to address the issue. It emphasized the importance of education and stated that counselling rather than punitive measures would be more suitable in these circumstances. The ruling highlighted the necessity of guiding and advising young individuals, who may be grappling with the consequences of exposure to adult content, so that they can have a  “healthy and happy future”.

It is important to note here that the central government had sent notices to social media platforms X (formerly Twitter), YouTube and Telegram last year warning that they would lose legal immunity unless they act on this issue urgently. The said platforms were also asked to permanently remove, or disable access to, any child pornography content. This action taken by the centre was then followed by reports that another social media platform—Instagram—is home to a vast network of such content being created and shared. A Wall Street Journal report had even said that Instagram’s algorithms linked and promoted this network of people seeking illegal sexual content and activity.

In the light of all these events, the Supreme Court also sought the response of Harish, a resident of Chennai, and the two police officers of Tamil Nadu. The case has now ignited a debate on the interpretation of legal statutes concerning child pornography and the appropriate measures needed to address its proliferation.

While acknowledging the harmful effects of exposure to pornography on minors, the High Court stressed the importance of proactive educational interventions. It suggested that addressing the issue should commence at the school level to mitigate the risks associated with early exposure to explicit material.

The ruling urged petitioner Harish to consider counselling if he continues to struggle with pornography addiction. This emphasis on rehabilitation reflects a growing recognition of the complexities involved in addressing issues related to online content consumption.

In its defence, the High Court while giving this judgment had relied upon a case decided by the Kerala High Court wherein it was held that watching pornography in private space is not an offence under Section 292 of the Indian Penal Code (IPC). The case was related to the quashing of a criminal case registered against a youth in 2016 by the Aluva police as he had been watching pornographic material on his mobile phone on the roadside at night.

The POCSO Act was enacted in consequence to India’s ratification of the UN Convention on the Rights of the Child in 1992. It needs to be kept in mind that the aim of this special law is to address offences of sexual exploitation and sexual abuse of children, which were either not specifically defined or inadequately penalised. As per this Act, a child has been defined as any person below the age of 18 years. The Act provides punishment as per the gravity of the offence and recognizes that both girls and boys can be victims of sexual abuse and that such abuse is a crime regardless of the gender of the victim.

It needs to be appreciated that the facts in the case decided by the Kerala High Court in Aneesh vs State of Kerala, 2023, did not pertain to child pornography. While watching adult pornography in privacy has been held as not to be an offence under Section 292 of the IPC (both by the Kerala High Court and the Supreme Court), downloading sexually explicit material pertaining to children is a whole different issue and clearly an offence under the IT Act.

Section 67B of IT Act, 2000, that was invoked by the police against the accused in the case at hand has five sub-clauses dealing with different aspects such as:

(a) talks about publishing or transmitting material depicting children engaged in sexually explicit act or conduct,

(b) deals with acts, including downloading of child pornography material,

(c) talks about cultivating, enticing or inducing children to [an] online sexually explicit relationship,

(d) talks about facilitating abuse of children online and sub-clause,

(e) talks about recording abuse/a sexually explicit act with children.

Section 14 of POCSO Act, 2012, further states that whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine. Sub-section 2 mentions that whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to

in Section 3 or Section 5 or Section 7 or Section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under Section 4, Section 6, Section 8 and Section 10, respectively, in addition to the punishment provided in sub-section (1).

Section 67B of the IT Act, along with related sections such as 67, 67A and Section 14 of POCSO Act, 2012, constitutes a comprehensive legislative framework to address offences related to child pornography. Even though the inclusion of specific provisions reflects the intent to combat sexual exploitation of children in cyberspace, some advocates suggest that the words “child pornography” should be replaced with “child sexual abuse materials” (CSAM) to better reflect the non-consensual nature of the content. This linguistic shift will not only enhance legal clarity, but also emphasise the seriousness of the offence. However, amendments to the POCSO Act may be necessary to include possession of CSAM as a separate offence, aligning it with the provisions of the IT Act, 2000. Further, harmonising provisions between the POCSO Act, 2012, and the IT Act, 2000 to ensure consistency in addressing offences related to child sexual exploitation would also result in streamlining the legal procedures and strengthen the protection of children. 

It is crucial for the state government and respective investigating agencies to take a stand against the Madras High Court’s decision to prevent setting a detrimental precedent. Upholding the integrity of laws related to child protection is essential for safeguarding vulnerable populations and ensuring justice.

As the Supreme Court prepares to delve into this contentious issue that raises crucial legal and ethical considerations regarding the interpretation and application of laws concerning child pornography, the case underscores the need for a balanced approach that prioritizes the protection of children while addressing the underlying societal factors contributing to the prevalence of child pornography. 

—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi

The Allahabad High Court has rejected the bail application of a woman accused of being involved in immoral practices of sexually abusing children/minors and making pornographic videos and uploading them on the Internet.

A single-judge bench of Justice Dinesh Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by the accused woman.

The application under Section 439 CrPC has been filed seeking bail in case under Sections 120-B read with 377 IPC and Sections 6 read with 5(c) (i)(m) and (n) and Sections 14, 15, 17 of POCSO Act and Section 67-B of Information technology Act, Police Station Special Crime III/ N.D/ CBI, New Delhi.

Accused-applicant is the wife of the main accused, Rambhawan, who was employed as Junior Engineer in Irrigation Department of Government of Uttar Pradesh. From reliable sources, an information was received that the husband of the accused-applicant was involved in immoral practices of sexually abusing children/minors and making pornography videos and uploading them on the Internet.

He was using mobile and three email IDs for publishing/ transmitting such media over Internet/Dark Web and other social media platforms. A pen drive was recovered, which contains 34 videos and 679 photographs related to child sexual abuse, which are being sold/ shared over Darkweb and other social media platforms/websites by the husband of accused-applicant and others.

The Court noted it is further alleged that several incriminating material/items were recovered such as 10 mobile phones, 2 laptops, sex toys, 6 memory cards, 6 pen drives, 1 digital video recording camera from the possession of the husband of the accused-applicant and from her. During search, Rs 8,27,650 was also recovered from the residence of the accused-applicant and co-accused. On pointing out of the co-accused, Rambhawan, one PS 4 video-game player, 8 oil bottles, 2 remote control devices for playing video games on PS4 video-game player, 5 Compact Disks of video games and BSNL Modems for internet connection, which he was using in commission of offence on small children were also recovered.

Allegation against the accused-applicant is that she was also involved in assisting and aiding her husband in sexually abusing and uploading the obscene videos of children/minors for earning money. Some of the children who were sexually exploited, have recorded their statement under Section 164 CrPC alleging that co-accused Rambhawan would ask them to have sex with his wife and she also indulged in sexual activity with the children. There is no child born from the wedlock of the accused-applicant and co-accused. The victims are 12-18 years old boys, who were exploited and the videos of indecent sexual acts were uploaded by the accused-applicant and coaccused, Rambhawan.

“Considering the statements of some of the victims recorded under Section 164 CrPC and the involvement of the accused applicant with her husband, the Court does not deem it appropriate to enlarge the accused-applicant on bail at this stage,” the Court observed, rejecting the bail application.

“However, the trial court should proceed with the trial and after framing of charge, record statements of some of the victims at least three victims within a period of six months. Once the three victims are examined in court, the accused-applicant may revive her bail plea by filing a fresh bail application, if she is so advised,” the Court ordered.

The Madurai bench of the Madras High Court has granted anticipatory bail to a youth arrested for sharing child pornographic content and observed that viewing pornography privately will not constitute an offence and, as on date, there is no provision prohibiting such private acts. However, child pornography falls outside this circle of freedom of free expression and privacy.

Justice G.R. Swaminathan observed: “The system also may not be able to prosecute every offender. Therefore, it is only through moral education, there can be a way out. It is only the Bharatiya culture that can act as a bulwark. The menace of child pornography can be tackled only if all of us inculcate the right values.”

The bench noted that the petitioner is an M.E. degree holder and presently pursuing a Ph.D. Even according to the prosecution, the occurrence took place almost one year back. It appears to be an one-off act. It is not the case of the prosecution that the possession or transmission was for commercial purposes.

It was further observed by the Court that Section 43 of the POCSO Act, 2012 mandates the Central and State Governments to take measures to spread public awareness about the provisions of the statute. But this alone may not be sufficient. That the “Big Brother” is watching us may not deter those who are determined to indulge in such acts of perversity.

The court observed: “Section 67-B of the Information Technology Act, 2000 penalizes every kind of action pertaining to child pornography. Whoever publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in a sexually explicit act or conduct; or creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges, or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or cultivates, entices or induces children to online relationship with one or more children for and on a sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or facilitates abusing children online, or records in any electronic form own abuse or that of others pertaining to sexually explicit act with children is liable to be punished. Therefore, even viewing child pornography constitutes an offense.”

The case of the prosecution is that on June 27, 2020, at 17.38:51 hours, the petitioner browsed, downloaded, and transmitted child pornographic material by using his Sim through his e-mail and Facebook account.

The Petitioner, P.G. Sam Infant Jones, is an accused in a case registered on the file of the Inspector of Police, AWPS Thallakulam, Madurai City for the offences under Section 15(1) of Protection of Children From Sexual Offences Act, 2012 and Section 67 B of the Information Technology Act, 2000. Since the Petitioner apprehended arrest at the hands of the respondent, approached the High Court for anticipatory bail.

Venkateshwaran. R, Counsel for the petitioner contended that during the relevant time, the Petitioner was in hostel and that the material made available so far is not sufficient to show that it was the Petitioner who had personally committed the acts in question.

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On June 8, the government counsel opposed the grant of anticipatory bail by contending that only seizure of the incriminating electronic devices and their examination would reveal the actual content and that it is too early to assume in favor of the petitioner that what he watched was not child pornography.

The order reads: “I am therefore of the view that custodial interrogation of the petitioner is not warranted. I also bear in mind that we are in pandemic times and that unless necessary, arrest should be avoided. Of course, child pornography is a very serious issue warranting a firm approach. But I would make a distinction between a one time consumer and those who transmit or propagate or display or distribute in digital domain. In the case on hand, the petitioner is said to have shared the offending material with his friend through Facebook messenger. Since the petitioner has not come under adverse notice after the occurrence and since he had also extended his fullest cooperation with the investigation, I am inclined to grant him anticipatory bail.”

Source: ILNS

New Delhi (ILNS): The Delhi High Court while hearing a case related to child pornography has directed the police agencies to forward sexually explicit material relating to the petitioner to the National Crime Records Bureau (NCRB) to identify the persons who are re-uploading the offensive content in India.

A single-Judge bench led by Justice Vibhu Bakhru was hearing a petition by a 24-year-old woman whose photographs which had been taken when she was a minor had been uploaded on the internet by her boyfriend.

After becoming aware that the accused had placed her photographs on the net, the petitioner filed a complaint against the accused before the Special Cell, Cyber Crime Department, Delhi Police and also sent notices to the Social media platforms for removal of the URL / webpages, however no caution was taken by the respondents after which the petitioner had to approach the High Court.

Advocate Anurag Ahluwalia, learned counsel appearing for Government of India submitted that NCRB acts as a nodal agency for technical and operational functions of on-line Cyber Reporting Portal: www.cybercrime.gov.in. The incidents reported on the portal are shared with the law enforcement agencies. NCRB has also entered into a Memorandum of Understanding (MoU) with NCMEC to receive Cyber Tipline reports relating to the suspected CP content.

Facebook, through an affidavit submitted that it has implemented a number of measures to combat the spread of child porn (CP) including working with National Centre for Missing and Exploited Children (NCMEC) which is a non- profit organization involved in helping to find missing children, reduce child sexual exploitation and prevent child victimization.  

Google LLC informed the Court that it has a dedicated web form that can be used by government agencies to report content that may be unlawful, including CSAM related material, which is then expedited for review by the relevant support teams. This web form can be accessed at http://supportgoogle.com/legal/contact/Ir_gov_india.

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The bench has directed also directed the Social media platforms to use such measures as available with them to remove the contents which are similar to the contents of the URLs in the present case.

Read the order here;

The changes made in the Protection of Children from Sexual Offences (POCSO) Act, 2012, by the centre have finally led to a proper definition of child pornography. According to the Ministry of Women and Child Development, child pornography is defined as “any visual depiction of sexually explicit conduct involving a child which includes photographs, videos, digital or computer generated image indistinguishable from an actual child and an image created, adapted or modified but appear to depict a child.” The punishment under the new amended Act is also more severe for depicting a child or children in any pornographic content. A minimum of five years’ jail, with a fine, is imposed after the first conviction. The amendment imposes a minimum of seven years’ imprisonment, with a fine for subsequent convictions.

The Supreme Court today asked the Centre to clear its stand on child pornography following a PIL which was filed in the Apex Court in 2014, by an Indore-based advocate Kamlesh Vaswani, deploring about the free availability of child pornography, and seeking measures to curb the same.

The PIL further contented since there were no appropriate laws, people had easy access to over 20 crore porn videos or clippings freely available in the market, which were downloaded from the internet. The PIL also sought a ban on pornographic sites saying rise in crime against women was an offshoot of such sites,

After the PIL was filed, the court issued notices to Ministry of Broadcasting and Internet Service Providers Association of India(ISPAI). In their reply, the ISPAI maintained that they cannot block these sites without directions from the government of the Department of Telecom.

Section 293 of Indian Penal Code penalises the sale or transmission of obscene objects to young person. On first conviction they shall be punished with imprisonment for a term which may extend to three years, and with fine which may extend to two thousand rupees.

Section 67 B of Information Technology Act provides for punishments for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form. A first offence of publishing, creating, exchanging, downloading or browsing any electronic depiction of children in “obscene or indecent or sexually explicit manner can attract five years in jail and a fine of Rs 10 lakh.