Downloading and watching child pornography is not an offence under the POCSO: SC expresses shock over HC order, terming it ‘atrocious’

Recently, the Supreme Court (SC) of India expressed shock over the Madras High Court order which stated that downloading and watching child pornography is not an offence and does not fall under the POCSO (Protection of Children from Sexual Offences) Act, 2012, and the Information Technology (IT) Act, 2000. Terming the HC order ‘atrocious’, the SC bench consisting of Chief Justice of India DY Chandrachud, Justice Manoj Misra, and Justice JB Pardiwala agreed to hear the plea against the HC order. The bench further sought a response for the same from the Tamil Nadu government and issued a notice returnable in three weeks (hearing in April 2024). 

The plea was filed by two child welfare NGOS, the ‘Just Rights for Children Alliance’ and ‘Bachpan Bachao Andolan’ of Faridabad and New Delhi respectively. 

The petition stated that “The impugned order, extensively covered in newspapers, gives the impression that individuals who download and possess child pornography will not face prosecution. This will encourage child pornography and would act against the well-being of children. The impression is given to the general public that downloading and possessing child pornography is not an offence and it would increase the demand for child pornography and encourage people to involve innocent children in pornography.” The HC, in its judgment, stated that “In order 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 the Information Technology Act, 2000.”

Along with this, the HC also expressed concern over the matter stating that viewing pornography affects both the psychological and physical well-being of teenagers. It 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.” After hearing the matter, the SC said, “This (the HC judgment) is atrocious. How can a single judge say this? Issue notice returnable in three weeks.”