The Supreme Court issued a major ruling on child pornography on Monday. The Supreme Court made it clear that viewing or storing child pornography is also an offense under POCSO and IT Act. The decision was delivered by Chief Justice DY Chandrachud and Justice JB Pardiwala.
The Supreme Court has ruled on a petition challenging the Madras High Court ruling. The Madras High Court in its judgment said that viewing or possessing child pornography does not fall within the scope of the offence. This decision of the High Court was challenged by many NGOs in the Supreme Court.
In early April this year, during the hearing of the same case, the Supreme Court commented that “viewing child pornography may not constitute a crime, but using children to participate in pornography does.”
The Supreme Court has now quashed this decision of the Madras High Court. The Supreme Court termed the Madras High Court ruling as a “serious error”.
What was the decision of the Madras High Court?
In 2019, a case was booked against a 28-year-old youth for downloading child pornography under the POCSO and IT Act.
Madras High Court Justice Anand Venkatesh dismissed the case, saying viewing child pornography is not an offense under POCSO and the IT Act.
The court also stated that the defendant had a habit of viewing pornography, but he had never seen child porn before. He also did not share the downloaded video with anyone. While quashing the case, the high court said that Generation Z is addicted to watching porn and instead of punishing them, they should be made aware of it. The court advised the accused that if he is still addicted to watching porn then he should undergo counseling.
The High Court argued that the defendant only viewed child porn and did not use any of his children or children to view child porn.
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What did the Supreme Court say?
The Supreme Court said that viewing, possessing, publishing or broadcasting child pornography is an offense under Section 15 of the POCSO Act.
In its judgment, the court said that Section 15(1) of the POCSO Act provides for penalties for failure to delete, destroy or make available obscene information related to children. At the same time, Section 15(2) criminalizes the broadcasting of child pornography-related content. In view of section 15(3), it is an offense to store child pornography for commercial purposes.
The Supreme Court said that Sections 1, 2 and 3 of the POCSO Act are different from each other. If a case is not provided for in paragraphs 1, 2 and 3, it does not mean that the case does not fall within the jurisdiction of Article 15.
The Supreme Court gave these recommendations
In this judgment, the Supreme People’s Court also gave some suggestions. The Supreme Court said the court should use the term “child sexual exploitation material” rather than “child pornography” in its decision.
The court said the government should amend the POCSO Act to use “child sexual exploitation material” instead of “child pornography”.
The court recommended that emphasis should be placed on sex education, which should include information on the legal and moral implications of child pornography.
The Supreme Court recommended that the central government set up an expert committee to formulate a sex education system. The court recommended that schools should make children aware of the POCSO law from an early age.
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Court comments on pornography
Watching porn is not a crime in India. From the High Court to the Supreme Court, it has been made clear in many judgments that viewing pornography in a private space does not constitute a crime.
Last year, the Kerala High Court, while delivering its judgment in a case, said, “Pornography has been around for centuries.” But in today’s new digital age, it has become more accessible. Both children and adults can use it easily. The question is, if someone watches a pornographic video in private time without showing it to anyone else, is this a crime? The courts cannot make it a crime because it may be a person’s personal choice and interfering with it would amount to an invasion of his privacy.
Earlier in 2015, the Supreme Court had said in a judgment that there was nothing wrong with viewing pornographic content in private spaces. The Supreme Court also said that there is no harm in viewing pornography alone but viewing or collecting obscene content related to child pornography or rape or violence against women is an offence.
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What are the laws on pornography?
In our country, it may be okay to watch pornographic content privately, but it is a crime to watch, download and distribute obscene videos or photos. Doing so may result in jail time and fines under Sections 67, 67A, 67B of the Information Technology Act.
Under Section 67, the penalty for viewing, downloading and distributing pornographic material for the first time is three years’ imprisonment and a fine of Rs 5 lakh. If caught a second time, the penalty is five years’ imprisonment and a fine of Rs 10 lakh.
Under Section 67A, if first found in possession of pornographic material on a mobile phone and circulate it, it is punishable with five years’ imprisonment and a fine of Rs 10 lakh. If caught for the second time, he will be punished with seven years’ imprisonment and a fine of Rs 10 lakh.
Meanwhile, Section 67B stipulates that if a video or photo related to child pornography is found in a person’s mobile phone, the person will be punishable with five years’ imprisonment and a fine of Rs 10 lakh if found for the first time. If caught a second time, he will be sentenced to seven years in prison and a fine of Rs 10 lakh.
Similarly, Sections 294, 295 and 296 of the Indian Judiciary Code (BNS) also provide for penalties. Under Section 294, it is an offense to sell, distribute, display or disseminate obscene material. If caught doing so for the first time, he could face a jail term of up to 2 years and a fine of up to Rs 5,000. If caught a second time, he can be jailed for up to five years and fined Rs 10,000.
And under Section 295, it is an offense to show, sell, rent or distribute obscene materials to children. If found guilty of doing so for the first time, the maximum penalty is three years’ imprisonment and a fine of Rs 2,000. If found guilty a second time, the maximum penalty is seven years’ imprisonment and a fine of Rs 5,000.
Similarly, under Section 296, singing obscene songs or committing obscene acts in public places is punishable with imprisonment for 3 months or fine of Rs 1,000, or with both.
Laws are tough on child pornography
There is a provision in the Protection of Children from Sexual Offenses Act (POCSO) that provides severe penalties for child pornography.
Section 14 of the law provides that if a person uses a child to spread obscene material, he can be sentenced to up to seven years in prison. Fines may also be imposed.
Meanwhile, Section 15 of the POCSO Act provides that if a person retains material related to child pornography, sends it to others or uses it for commercial purposes, he can be jailed for three to seven years or fined, or Do both. yes.
