The Supreme Court on Friday reserved verdict on a plea challenging the Madras High Court judgment that stated that downloading child pornography was not an offence under the Protection of Children from Sexual Offences (POCSO) Act.
During the hearing, CJI DY Chandrachud stated that watching pornography may not be an offence, but a child used in pornography will be an offence. A bench of CJI DY Chandrachud and Justice JB Pardiwala stated that watching pornography may not be an offence, but the High Court has said watching child pornography is also not an offence. The bench added that they will look into the matter and will pass orders.
The apex court was hearing a plea by the NGO, Just Right for Children Alliance, which has challenged the Madras High Court judgment in the POCSO case concerning downloading of child pornography.
Appearing for the NGO, Senior advocate HS Phoolka argued that the POCSO Act says that if any video or photo is there, you need to delete the same. However, in this matter, the accused was constantly watching the video. The counsel added that the accused watched it for two years, according to the report of NETMEG. The first video was before the amendment, but the second was after the amendment, he noted.
Subsequently, the bench questioned if it is an offence to keep the video on his mobile phone for two years. The counsel for the respondent then explained that the video in question was auto-downloaded in WhatsApp. He added that the file comes to WhatsApp and is auto-downloaded if the WhatsApp setting is kept on by an individual.
Following, the court examined the amendment in the POCSO act in 2019. After reviewing the amendment, the Chief Justice said that after the amendment, this becomes an offence and how can the accused not know that this video is there on his phone. Considering both the submissions, the court reserved its judgment.
In January, 2023, the Madras High Court ruled that downloading child pornography is not an offence under POCSO or the Information Technology Act since such actions were taken in privacy without affecting or influencing anyone else.
Consecutively, the High Court had dismissed the proceedings against a 28-year-old man charged with downloading child pornographic content to his mobile phone.
Challenging the verdict, the NGO, Just Rights for Children Alliance approached the Supreme Court, stating that this would encourage child pornography and go against the well-being of children.