The Incident that challenged the Bench of Supreme Court:
January 11,2024 : A prosecution case against a 28-year-old man for downloading and viewing child pornography on his phone was previously dismissed by the Madras High Court.
The high court has granted relief, declaring that the accused must have published, transmitted,
or created content depicting children engaging in sexually explicit act or conduct in order for it to
be considered an infraction under section 67-B of the IT Act, 2000.
The Protection of Children from Sexual Offences (Pocso) Act does not consider the simple act of keeping child pornographic material without the intention of transmitting it to be illegal,
according to a ruling from the Madras High Court.
The High Court has also stated that society should concentrate on educating youngsters instead
of punishing them because watching pornography is a major problem for kids these days.
What is the POCSO Act?
POCSO Act is a gender neutral legislation providing for the welfare and safety of children
irrespective of their gender. As per section 2(d) of POCSO Act, a child is any person who is below
eighteen years of age. A victim under the Act can be a male or female child. The Act does not
create any distinction between the victim or the perpetrators on the basis of their gender. There
are instances when women are convicted under this Act for child sexual abuse.
The overturned ruling by Supreme Court :
A Madras High Court ruling that said downloading and watching child pornography did not
violate the POCSO Act or IT legislation was overruled by the Supreme Court on Monday.
Judge J.B. Pardiwala, Manoj Misra, Chief Justice D.Y. Chandrachud, and other members of the
bench decided that downloading and viewing child pornography are crimes under the POCSO Act
and IT Law.
Guidelines about child pornography and its legal ramifications were also supplied by the bench.
“We have proposed to Parliament that the term ‘child sexually abusing and exploitative material’
be used to describe what is considered child pornography, as per the POCSO amendment.
“We have suggested an ordinance can be brought in,” it continued.
“The Parliament should seriously consider to bring about an amendment to
the POCSO for the purpose of substituting the term “child pornography”
with “child sexual exploitative and abuse material” (CSEAM) with a view to
reflect more accurately on the reality of such offences. The Union of India,
in the meantime may consider to bring about the suggested amendment to
the POCSO by way of an ordinance.”
The order of the Madras High Court was challenged in a petition, which prompted the Apex court to make its conclusion. The request, which contended that the high court’s ruling went against the relevant statutes, was earlier granted permission to be heard by the supreme court.
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H. S. Phoolka, a senior counsel representing two petitioner organizations, brought this disparity
to the court’s attention. The senior attorney appeared in court on behalf of the New Delhi-based
Bachpan Bachao Andolan and the Faridabad-based NGOs Just Rights for Children Alliance. The
organizations strive to improve children’s welfare.
Considered a “egregious error,” the Madras High Court’s order to halt the criminal proceedings
was overruled by the Supreme Court, which also brought back the criminal prosecution.
Furthermore, the SC requested that Parliament enact a statute that would substitute “child sexual
exploitative and abuse material” (CSEAM) for the phrase “child pornography.”
Judge Pardiwala expressed his gratitude to CJI Chandrachud for providing him with the chance to
write the judgment, calling it a historic ruling and the first time in history that the judiciary has
addressed child sexual exploitation and abuse in such depth.
A few principles on child pornography and its legal ramifications were also established by the
bench.
