Mere storage of any pornographic material involving a child with certain specified intentions is punishable under the Protection of Children from Sexual Offences Act, the Supreme Court has held.
In doing so, the top court struck down a judgment of the Madras High Court that quashed criminal proceedings against an accused who possessed a video depicting children involved in sexual activity. The accused was in possession of the video for nearly three years.
The high court had made some observations that did not sit right with the top court. While penning its verdict, the high court observed that mere possession or storage of any pornographic material is not an offence under the POCSO Act.
In addition, it said that watching or downloading child pornography in a private domain is not punishable under the law.
The top court stated that the high court made an egregious error by quashing the proceedings against the accused, as it was oblivious to the provisions applicable to the case at hand.
The entire fiasco led the top court to clarify the provisions concerning the storage of child pornography and its punishment thereof.
Crucial Ingredients
The court has said that mere storage or possession of any pornographic material involving a child without any actual transmission or dissemination is punishable under section 15 of the POCSO Act.
This means that an offence under this provision is an inchoate offence, meaning that it is preparatory to a further criminal act.
Punishment under section 15 is subject to the condition that the person in possession of the incriminating material failed to delete, destroy, or report the pornographic material that is intended to be transmitted.
Further, the court has clarified that section 15 penalises both the actual transmission, propagation, display, or distribution of any child pornography as well as the facilitation of any of these acts. The manner and intention of storing such pornography must be considered to determine a punishment under this sub-provision.
Section 15 of the POCSO Act also penalises a person for storing child pornography for commercial purposes.
A punishment under this sub-provision comes with the caveat that there must be some additional material or attending circumstances that can indicate that the said storage or possession was done with the intent to derive some monetary gain, the court said.
All these conditions are independent of each other, and if an offence is not made out under one of these conditions, it wouldn’t automatically mean that the offence does not exist at all.
Pertinently, the court has elucidated that any act of viewing, distributing, or displaying any child pornographic material over the internet without any physical possession of such material in any device would also amount to ‘possession’ in terms of section 15 of the POCSO Act, provided that the person exercised an invariable degree of control over such material.
Child Pornography: A Misnomer?
In today's age, where everyone has the ability to surf the web, sexual exploitation in the form of child pornography can quickly take a very ugly turn.
The creation or dissemination of such pornographic material further extends and compounds the harm infinitely and at a far larger scale.
Supreme Court of IndiaIn essence, it turns the singular incident of an abuse into a ripple of trauma-inducing acts where the rights and dignity of the child are continuously violated each time such material is viewed or shared.
Underscoring the gravity of this offence, the top court remarked that the term child pornography is a misnomer, in as much as it fails to capture the full extent of the crime.
The court flagged that it is important to recognize that each case of what is traditionally termed ‘child pornography’ involves the actual abuse of a child. The term 'child pornography' can trivialise the crime, as people often perceive it as a consensual act between adults.
Therefore, the court has suggested the parliament to substitute the term ‘child pornography’ with ‘child sexual exploitative and abuse material’ or ‘CSEAM’ as it is a more accurate description of the reality of these images and videos.
As long as this amendment does not take the force of law, the court has suggested the parliament to issue an ordinance to effect this change in the meantime.
The court has also banned the use of the term 'child pornography' by judicial forums all over the country.
Further, the court has called for the implementation of comprehensive sex education programs that include information about the legal and ethical ramifications of child pornography, coupled with providing support services to the victims and rehabilitation programs for the offenders.
Another suggestion that fell from the top court pertains to early identification of at-risk individuals and implementing intervention strategies for youth with problematic sexual behaviours.
To give a meaningful effect to these suggestions, the court has envisioned the formation of an expert committee to devise a comprehensive program for health and sex education, as well as raising awareness about the POCSO among children across the country.
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