New Delhi: The Supreme Court on Monday held that failure to delete, or keeping child pornography material from any individual device would constitute an offence under the Protection of Children from Sexual Offences Act.
In its "landmark" judgment, a bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra also directed the Union government to bring an amendment to replace term "child pornography" with "Child Sexual Exploitative and Abuse Material".
The court explained that keeping such explicit materials and watching it would also constitute an offence under the law.
The bench tried to explain all relevant provisions of the POCSO Act on the presumptions of the culpable state of mind and laid down guidelines also.
The court set aside the Madras High Court's judgment which held that merely downloading and/or watching child pornography on one's electronic device did not constitute an offence under the POCSO and the IT Act.
The Madras High Court had on January 11, 2024 quashed the criminal case against a 28-year-old man, S Harish, charged by the prosecution for downloading and watching on his mobile phone some pornographic content involving children.
The High Court had set free Harish under the Protection of Children from Sexual Offences (POCSO) Act, 2012 and the Information Technology Act, 2000.
The HC had granted relief to Harish on the ground that to constitute an offence under Section 67-B of Information Technology Act, 2000, the accused person (Harish) 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, an offence under the said Section, it had said.
The apex court overturned the High Court's judgment on an appeal by NGO, Just Right for Children Alliance and intervention by the National Commission for Protection of Child Rights.
Senior advocates H S Phoolka and Swarupma Chaturvedi appeared for the NGO and the NCPCR respectively.
