Why the terms “downloading or watching child pornography” was in the news:
In its recent ruling the Madras High Court held that “the accused had only downloaded the child pornographic material for private viewing, so it is not an offence under Section 67-B of the IT Act, 2000 and also stated that to attract the offences under the POCSO Act, a child or children must have been used for pornographic purposes and in the present case, the court noted that the accused had watched pornography videos but had not used a child or children for pornographic purposes. Thus, in the opinion of the court, this could only be construed as a moral decay on the part of the accused person.”
This judgment has been widely covered and criticized by various newspapers, Because it is giving the impression that persons who download or possess child pornography will not be prosecuted. Also, downloading and possessing child pornography is not a crime. This may promote child pornography and work against the well-being of children. This may increase the demand for child pornography and encourage people to involve innocent children in pornography.”
Hence, on a petition by the NGO Just Rights for Children Alliance, the Supreme Court reversed the decision and held that:
JUST RIGHTS FOR CHILDREN ALLIANCE VS S. HARISH
Judgement pronounced : 23/09/2024
Justices: Dr. D. Y. Chandrachud (former CJI) and Justice Jamshed B. Pardiwala
Brief facts of the case:
Honorable Supreme Court held that –
1. Any act of viewing, distributing or displaying etc., of any child pornographic material by a person over the internet without any actual or physical possession or storage of such material in any device or in any form or manner would also amount to ‘possession’ in terms of Section 15 of the POCSO Act 2012, provided the said person exercised an invariable degree of control over such material, by virtue of the doctrine of constructive possession.
Doctrine of Constructive Possession: Possession over a thing beyond physical control where an individual has the power and intention to control that thing, even if it is not in their immediate physical possession.
2. The offences under Section 15(1),(2)&(3) are in the nature and form of an inchoate crime which penalizes the mere storage or possession of any pornographic material involving a child when done with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc.
Inchoate Crime: Inchoate crimes are defined as criminal acts that are committed in
preparation for a further offence. The term “inchoate” itself means “undeveloped” or “incomplete.”
So the question is : Is it a crime to view child pornography over the Internet without downloading it?
The answer is, it would be a crime under Section 15(1) of the POCSO Act 2012 if the circumstances sufficiently indicate the intention on the part of the accused to share or transmit such material.
Similarly, it would be a crime under sub-section 15(2) & 15(3) of the POCSO Act 2012 if the circumstances sufficiently indicate the intention on the part of the accused as provided under those respective sub-sections.