NEW DELHI: The Supreme Court on Monday expressed shock at a recent observation made by the Madras High Court that watching child pornography in private does not constitute an offence under the Information Technology Act of 2000.
"How can a single judge say like this? This is atrocious," the top court's three-judge bench, led by the Chief Justice of India (CJI) DY Chandrachud and also comprising Justices JB Pardiwala and Manoj Misra, said.
The bench of the top court passed these remarks after hearing an appeal filed by the Just Rights for Children Alliance, a coalition of NGOs, against the recent Madras High Court order.
The HC judge Justice N Anand Venkatesh had in a recent order held that merely downloading or watching child pornography on one’s personal electronic device does not constitute an offence under the POCSO Act and the IT Act.
The Supreme Court on Monday also issued a notice to the Tamil Nadu government after the Just Rights for Children alliance challenged the Madras High Court recent order.
The HC had held that downloading and viewing child pornography was not an offence. In a widely publicized order, the HC had quashed the FIR and criminal proceedings against a 28-year-old Chennai man and had held that watching child pornography would not fall within the scope of the POCSO Act, 2012.
After the SC's observation and notice, HS Phoolka, senior advocate, said it was a watershed moment in the endeavour to ensure the right to justice because the Supreme Court has accepted that even in a criminal case, a third party not directly affected by the crime can approach the higher judiciary if travesty of justice has been done or if justice has been denied.
The Just Rights for Children alliance is a coalition formed by five NGOs with over 120 NGOs as partners, working throughout India against child sexual exploitation, child trafficking and child marriage.
The NGO argued before the top court that the impression is given to the general public that downloading and possessing child pornography is not an offence. “It would increase the demand for child pornography and encourage people to involve innocent children in pornography,” the petition said.
The Madras High Court on 11 January 2024 had quashed the FIR and criminal proceedings related to the downloading of child pornography and held that downloading and possessing child pornography does not amount to any offence.
Police in Ambattur, Chennai, had seized the phone of the accused and discovered that he had downloaded and possessed child pornography. Consequently, they registered an FIR under the IT Act and the POCSO Act.
However, the High Court quashed the criminal proceedings against the accused on the grounds that he had merely downloaded the material and watched the pornography in privacy and it was neither published nor transmitted to others.
The court further said that watching child pornography will not fall within the scope of the POCSO Act, 2012 and since the accused had not used a child or children for pornographic purposes, at best, it can only be construed as moral decay on the part of the accused person.