New Delhi: The act of viewing, distributing, or displaying child pornographic material over the internet by any person would attract punishment under the Protection of Children from Sexual Offences (POCSO), the Supreme Court held Monday.
A bench of Chief Justice of India D.Y. Chandrachud and J.B. Pardiwala said Section 15 of POCSO would apply in such cases where sexually explicit content involving children is found in possession of a person who has “invariable degree of control” over such material. It would also apply to cases where data has not been downloaded. Actual possession or storage of such material in any device or any form or manner is not necessary to face proceedings under the law.
Section 15 of POCSO penalises storage or possession of any child pornographic material with the intention to transmit (subsection 1); transmit and display (subsection 2); and earn commercial gains (subsection 3).
The SC judgment provides clarity on the words “storage” and “possession”, expanding its scope to include even just the viewing of child pornography.
The development comes against the backdrop of contradictory high court judgments on what constitutes an offence under Section 15 of POCSO as well as the Information and Technology (IT) Act, though this one was dealing specifically with a Madras HC order.
The top court’s ruling overturned the Madras HC order of January 2024 that quashed a POCSO First Information Report (FIR) against a 28-year-old man charged with downloading sexually explicit content involving children on his mobile phone. The case was quashed despite a charge-sheet being filed against the accused. The high court had said that merely storing child pornography without any intention to transmit it would not constitute an offence under POCSO.
The decision was challenged in the Supreme Court by a group of NGOs who work in the field of child rights. The petitioners were supported by the National Commission for Protection of Child Rights (NCPCR), a central government body, that argued that the special law presumed culpable mental state on the part of the accused and that downloading and possession of the objectionable content was a crime.
While setting aside the high court judgment, the top court said: “There is no requirement of a physical or tangible ‘storage’ or ‘possession’ of such material in Section 15 of the POCSO.”
It further said: “The term ‘storage’ and ‘possession’ that has been used in the said provision does not require that such ‘storage’ or ‘possession’ must continue to be there at the time of registration of an FIR or any criminal proceeding.”
The bench also called upon Parliament to “seriously consider bringing about an amendment to the POCSO for the purpose of substituting the term ‘child pornography’ with ‘child sexual exploitation and abuse material’ (CSEAM)” to “reflect more accurately on the reality of such offences”.
“The Union of India, in the meantime may consider bringing about the suggested amendment to the POCSO by way of an ordinance,” read the judgment.
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What Madras HC said on child pornography
The FIR in the case was registered in January 2020 on the basis of a Cybertipline Report of the National Crimes Record Bureau (NCRB) that described the accused as an “active consumer of pornography” who had downloaded child pornography on his mobile phone.
After the man’s arrest, the police sent his mobile phone for forensic examination. It confirmed the presence of two video files related to child pornography. They showed two underage boys involved in sexual activity with an adult woman. The forensic examination also revealed the accused had downloaded more than a hundred pornographic videos.
In his quashing petition before the high court, the accused claimed the material had downloaded on his WhatsApp automatically.
Though the high court had dismissed the charges against the man, it raised concerns about the harmful effects of pornography on teenagers.
It said that solely downloading and watching child pornography does not constitute an offence under the POCSO and the IT Act. To constitute an offence under Section 67-B of the Information Technology Act, 2000, the accused person must have published, transmitted, or created material depicting children in a sexually explicit act or conduct.
Senior advocate H.S. Phoolka, representing two organisations—Just Rights for Children Alliance and Bachpan Bachao Andolan—challenged the court’s decision, citing provisions from the POCSO Act and the IT Act.
The Supreme Court permitted the NCPCR to intervene in the case.
NCPCR’s lawyer, senior advocate Swarupama Chaturvedi, submitted that the automatic downloading of pornographic material cannot be accepted as a defence under POCSO. She said the yardstick has to be strongly applied before absolving anyone from the offence under the special law to protect children.
POCSO Section 15—Doctrine of Inchoate Crime
The Supreme Court’s 200-page long judgment provided an insight into the scope of Section 15 of POCSO, discussing in the elements that make up the three distinct offences related to storage and possession of sexually explicit videos of children under the provision.
The three subsections were added to section 15 in 2019, which, the court said, was a significant step by the legislature to make the existing offences under POCSO more stringent so as to act as a deterrent to sexual predators.
The judgment delved deeper into the concept of “inchoate crimes,” which involve preparing for or attempting to commit another crime. Section 15 of POCSO, the bench said, punishes the intention and not commission of any criminal act and, therefore, can be categorised as addressing inchoate crimes or offences.
“Doctrine of Inchoate Crime underscores the principle that law does not merely respond to offences already committed, but also intervenes when a crime is in the process of being committed, thus thereby protecting public order and safety. It aims to address the legal culpability of those who participate in the commission of a substantive offence, prevention of harm by intervention at an early stage and reflects the existence of criminal intent,” the court said.
Offences on the possession of contraband are a prime example of this category of offences, the court said, while including section 15 of the POCSO under it.
“Section 15 of the POCSO is in the nature and form of an inchoate offence which penalises the mere storage or possession of any pornographic material involving a child when stored with a specific intent prescribed thereunder, without requiring any actual transmission, dissemination etc.,” the court said.
On a deeper reading of the provision, the court said the law is clear that no actual sharing or transmission is required to occur. Rather what is required is only the intention to share or transmit because of which the said material was neither deleted, destroyed, or reported.
Degree of culpable mens rea
The judgment also dealt with the nature of mens rea (mental state of the accused) needed for an inchoate crime, drawing clear distinctions between each subsection of Section 15. The underlying differences between the three subsections lie in the degree of culpable mens rea, it said.
For subsection 1, the court said, the fact that the content was neither deleted nor brought to the notice of law-enforcement agencies would be treated as mens rea. However, it must be shown that possession was due to an omission to delete or destroy.
Under subsection 2, the court said, it must be shown that there was intention to facilitate the transmission, propagation, display, or distribution of the objectionable content.
Lastly, to invoke subsection 3, the court said, the requirement is that the storage or possession of any child pornography must be in lieu of any monetary gain or any other valuable consideration. However, it is immaterial whether any monetary gain or any other benefit was actually realised or not, the court added.
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Doctrine of constructive possession
The bench also explained the doctrine of constructive possession, reading it as integral to inchoate crime.
“Constructive possession extends the concept of possession beyond physical control to situations where an individual has the power and intention to control the contraband, even if it is not in their immediate physical possession,” the bench said.
This, it said, would include situations where a user views child pornography on their own volition, without downloading or storing the same in their mobile. However, in case someone downloads the material received as part of a forward link, then such a person would not be said to be in possession.
However, if instead of closing the link in a reasonable time, the person continues to view it, then such a case would be covered under constructive possession and the accused would be punishable under POCSO.
The court also added that an offence can be made out under Section 15 if it is established that the accused “stored” or “possessed” child pornographic content with any of the specified intentions at any point in time; even if that was before any criminal proceedings had been registered.
Why Madras HC judgment was set aside
After interpreting the law under Section 15 of POCSO, the top court evaluated the Madras HC order on the strength of its other legal points.
It observed that Section 30 of POCSO presumed mental culpability against the accused. It forms an exception to the cardinal principle of criminal jurisprudence that the act does not make the person guilty unless the mind is also guilty.
Under criminal jurisprudence, since one is presumed innocent until proven guilty, mental culpability is required to be proven during the trial, whereas, under POCSO, there is presumption of mens rea that the accused has to rebut during trial.
Therefore, the Supreme Court said, a special court hearing the POCSO case shall presume the existence of a culpable mental state. However, this can be rebutted, though only during a trial.
The judgment also touched upon section 67B of the IT Act. Giving it a purposive interpretation, the bench said the legislative intent behind the enactment of the law was to penalise various forms of cyber-offences relating to children and the use of obscene and pornographic material through electronic means. A narrow construction of the provision would defeat the objective of the provisions.
Not knowing law doesn’t grant leniency
In the case at hand, the top court refused to show leniency on the grounds that the accused was unaware of the law. The court said the child pornographic material that was recovered from the personal mobile phone of the accused prima facie established the storage or possession of child pornographic material by his hand.
It said that this defence can only be tested during trial. The claim that he was ignorant about the law would have to pass the four-prong test under criminal jurisprudence for a valid defence. Only when all four of the conditions are fulfilled would the accused be entitled to plead ignorance of the law as a defence, the court said.
(Edited by Sanya Mathur)