SC to hear an Appeal against Kerala HC order that Mere Downloading of Child Pornography on a Mobile Phone is not an Offence under the POCSO or IT Acts

On August 12, 2024 (yesterday), the Supreme Court (SC) bench constituting Chief Justice of India DY Chandrachud, Justice JB Pardiwala, and Justice Manoj Misra was hearing a plea filed by Just Rights for Children Alliance. The plea was filed challenging the order of the Kerala High Court (HC) stating that mere downloading of child pornography on a mobile phone cannot be considered an offence under the POCSO (Protection of Children from Sexual Offences) Act, 2012, or the Information Technology (IT) Act, 2000. The SC bench issued a notice in a petition and said the appeal would be considered later. While issuing the notice, the CJI referred to the challenge against the order of the Madras High Court which stated, “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.” Earlier this year, the CJI termed the Madras HC order ‘atrocious’. Yesterday, the CJI told the counsel appearing for the petitioner, “We have reserved judgment in the Madras High Court order challenge, just wait for it.”

The Kerala HC, in its verdict, stated that automatic or accidental downloading of children engaged in the sexually explicit act is not an offence under Section 15(2) of the POCSO Act, 2012, or Section 67B of the IT Act, 2000 when the evidence showed that there was no specific intent to transmit or distribute the same. Section 67B of the IT Act states that “Whoever…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.” Section 15(2) of the POCSO Act states that “Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.” 

After hearing the matter, the Supreme Court bench issued a notice and would soon hear the matter concerning the correctness of the Kerala HC order that the mere downloading of child pornography on a mobile phone cannot be considered an offence under the POCSO Act or IT Act.