Storing Child Pornography Material Without Deleting Or Reporting, Constitutes An Offence Under POCSO Act: Supreme Court

Today (September 23, 2024), the Supreme Court (SC) of India set aside the Madras High Court judgment which held that merely watching and storage of child pornography on digital devices without any intention to transmit the same was not an offence under the POCSO Act (Protection of Children from Sexual Offences Act). The two-judge bench of the SC constituting Chief Justice of India DY Chandrachud and Justice JB Pardiwala held that the storage of such material, without deleting or reporting the same would indicate an intention to transmit. While setting aside the HC’s judgment, the bench said that the High Court committed an egregious error in passing the impugned judgment. 

The bench said that Section 15 of the POCSO provides for three distinct offences that penalize either the storage or the possession of any child pornographic material when done with any particular intention specified under sub-section(s) (1), (2) or (3) respectively. It is in the nature and form of an inchoate offence that penalizes the mere storage or possession of any pornographic material involving a child when done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination, etc. It further observed, “Sub-section (1) of Section 15 penalizes the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same. The mens-rea or the intention required under this provision is to be gathered from the actus reus itself i.e., it must be determined from the manner in which such material is stored or possessed and the circumstances in which the same was not deleted, destroyed or reported. To constitute an offence under this provision the circumstances must sufficiently indicate the intention on the part of the accused to share or transmit such material.”

The bench added “Section 15 sub-section (2) penalizes both the actual transmission, propagation, display, or distribution of any child pornography as well as the facilitation of any of the abovementioned acts. To constitute an offence under Section 15 sub-section (2) apart from the storage or possession of such pornographic material, there must be something more to show i.e., either (I) the actual transmission, propagation, display or distribution of such material OR (II) the facilitation of any transmission, propagation, display or distribution of such material, such as any form of preparation or setup done that would enable that person to transmit it or to display it. The mens rea is to be gathered from the manner in which the pornographic material was found to be stored or in possession and any other material apart from such possession or storage that is indicative of any facilitation or actual transmission, propagation, display or distribution of such material.” 

Following this, the bench observed, “Section 15 sub-section (3) penalizes the storage or possession of any child pornographic material when done for any commercial purpose. To establish an offence under Section 15 sub-section (3), besides the storage or possession of the pornographic material involving a child, there must be some additional material or attending circumstances that may sufficiently indicate that the said storage or possession was done with the intent to derive any gain or benefit. To constitute an offence under sub-section (3) there is no requirement to establish that such gain or benefit had been actually realized.” The SC concluded, “Sub-section(s) (1), (2) and (3) respectively of Section 15 constitute independent and distinct offences. The three offences cannot coexist simultaneously in the same set of facts. They are distinct from each other and are not intertwined. This is because, the underlying distinction between the three sub-sections of Section 15 lies in the varying degree of culpable mens rea that is required under each of the three provisions. 

The police as well as the courts while examining any matter involving the storage or possession of any child pornography, finds that a particular sub-section of Section 15 is not attracted, then it must not jump to the conclusion that no offence at all is made out under Section 15 of the POCSO. If the offence does not fall within one particular sub-section of Section 15, then it must try to ascertain whether the same falls within the other sub-sections or not.” Moreover, the SC bench called for implementing comprehensive sex education programs to give youth a clear understanding of consent and the impact of exploitation. It said, “One prevalent misconception is that sex education encourages promiscuity and irresponsible behavior among youth. Critics often argue that providing information about sexual health and contraception will lead to increased sexual activity among teenagers. However, research has shown that comprehensive sex education actually delays the onset of sexual activity and promotes safer practices among those who are sexually active.” 

The bench added that due to a belief that sex education is a Western concept that does not align with traditional Indian values, state governments put bans on sex education in schools in some states. This type of opposition hinders the implementation of comprehensive and effective sexual health programs, leaving many adolescents without accurate information. This is what causes teenagers and young adults to turn to the internet, where they have access to unmonitored and unfiltered information, which is often misleading and can plant the seed for unhealthy sexual behaviors. The SC observed, “...positive sex education promotes healthy attitudes towards sexuality and relationships, which can counteract the distorted perceptions often associated with the consumption of child pornography. It can also help foster greater empathy and respect for others, reducing the likelihood of engaging in exploitative behaviors. Comprehensive sex education programs also teach youth about the importance of consent and the legal implications of sexual activities, helping them understand the severe consequences of viewing and distributing child pornography.”

Furthermore, the Court opined, “We are of the considered view that the obligation of the appropriate government and the commission under Section(s) 43 and 44 of the POCSO respectively, does not end at just spreading awareness about the provisions of the POCSO. Since, one of the salutary and avowed object of the POCSO was the deterrence of offences of child sexual abuse and exploitation, thus, as a natural corollary, the obligation the appropriate government and the commission under the aforesaid provisions will also entail imparting of sex education and awareness amongst the general public, children as well as their parents and guardians, particularly in schools and places of education.” After hearing the matter, the SC bench set aside the High Court’s judgment and restored the criminal prosecution. The bench proposed to suggest the Union of India in its Ministry of Women and Child Development that the “Parliament should seriously consider to bring about an amendment to the POCSO for the purpose of substituting the term ‘child pornography’ that with ‘child sexual exploitative and abuse material’ (CSEAM) with a view to reflect more accurately on the reality of such offences. The Union of India, in the meantime may consider to bring about the suggested amendment to the POCSO by way of an ordinance.”