'Atrocious' : Supreme Court Frowns Upon Madras HC Judgment That Watching Child Porn In Private Isn't Offence

The Supreme Court on Monday (March 11), orally expressed disapproval of a recent Madras High Court judgment, which declared that downloading and viewing child pornography is not an offence.

"This is atrocious", Chief Justice of India orally remarked about the High Court's reasoning.

The bench led by CJI  DY Chandrachud comprising Justices JB Pardiwala and Manoj Misra heard the plea filed by Just Rights for Children Alliance. The coalition of NGOs has raised concerns over the potential impact of such a ruling on child welfare.  The bench issued notice on the petition returnable within three weeks.

In a case involving a 28-year-old Chennai man, the Madras High Court quashed the FIR and criminal proceedings, asserting that watching child pornography does not fall within the scope of the Protection of Children from Sexual Offences (POCSO) Act, 2012. The accused had downloaded explicit material involving a child on his mobile phone. 

The petition stated that "The FIR was registered by the Police based on information received there was no complainant as such. During the investigation, the accused mobile phone was seized and the analyst of the Forensic Science Department identified two files that contained child pornography content. Consequently, the Final Report was filed before the Ld. court below against the accused, and the court took cognizance of the same." 

Madras High Court's Reasoning 

The Madras High Court's decision was grounded in several key points: the accused had only downloaded the material for private viewing, it was not published or transmitted, and it was argued that merely downloading and watching child pornography is not an offense under Section 67-B of the Information Technology Act, 2000.

The single bench noted that to attract the offences under the POCSO Act, a child or children must have been used for pornography purposes. 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. This, in the opinion of the court, could only be construed as a moral decay on the part of the accused person.  

Petitioner's Concern About The Social Impact Of Normalizing Child Pornography 

The Just Rights for Children alliance expressed concerns that the order might encourage child pornography by giving the impression that individuals downloading and possessing such material will not face prosecution. They emphasized the potential harm to innocent children and the negative impact on child welfare. 

As per their petition, it is contended - " The impugned order, extensively covered in newspapers, gives the impression that individuals who download and possess child pornography will not face prosecution. This will encourage child pornography and would act against the well-being of children. The impression is given to the general public that downloading and possessing child pornography is not an offence and it would increase the demand for Child pornography and encourage people to involve innocent children in pornography."  

Case Details : JUST RIGHTS FOR CHILDREN ALLIANCE vs. S. HARISH Diary No.- 8562 - 2024 

Counsels For Petitioners : Mr. H.S. Phoolka, Sr. Adv. Mr. Jagjit Singh Chhabra, Adv. Ms. Rachana Tyagi, Adv. Mr. Saksham Maheshwari, AOR, Ms. Shashi, Adv. Ms. Taruna Panwar, Adv., Ms. Surpreet Kaur, Adv.