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Informist, Monday, Sep 23, 2024

 

NEW DELHI – Setting aside a Madras High Court order, the Supreme Court Monday held that storing and watching child pornography is an offence under The Protection of Children from Sexual Offences Act, 2012. The high court had committed an "egregious error" in its ruling that mere storing and watching child pornography is not an offence, said the apex court.

 

The Supreme Court restored the criminal proceedings against an accused who had downloaded pornographic material involving children on his mobile phone. The high court had quashed the chargesheet against the accused for the offences punishable under Section 67B of the Information Technology Act, 2000 and Section 15(1) of the Protection of Children from Sexual Offences Act, 2012. Challenging this, Just Rights for Children Alliance and Bachpan Bachao Andolan had moved the apex court.

 

The impact of child sexual exploitative and abuse material on its victims is devastating and far-reaching, affecting their mental, emotional, and social well-being, said the court. The relentless reminder that images and videos of their abuse are circulating online can lead to a persistent sense of victimisation and helplessness, further exacerbating feelings of shame, guilt, and worthlessness, the apex court added.

 

The Supreme Court today suggested the Parliament bring about an amendment to the 2012 Act for the purpose of substituting the term "child pornography" with "child sexual exploitative and abuse material" with a view to reflect more accurately the reality of such offences. In the meantime, the government may consider bringing about the suggested amendment to the 2012 Act by way of an ordinance, said the apex court. The Bench led by Chief Justice of India D.Y. Chandrachud asked all the courts not to use the term "child pornography" in any judicial order or judgement, and instead endorse the term "child sexual exploitative and abuse material".

 

The Bench, also comprising Justice J.B. Pardiwala, said that implementing comprehensive sex education programmes that include information about the legal and ethical ramifications of child pornography can help deter potential offenders. These programmes should address common misconceptions and provide young people with a clear understanding of consent and the impact of exploitation, said the court.

 

The top court asked the government to consider constituting an expert committee tasked with devising a comprehensive programme or mechanism for health and sex education, as well as raising awareness about the 2012 Act among children across the country from an early age, for ensuring a robust and well-informed approach to child protection, education, and sexual well-being.

 

Section 15(1) of the 2012 Act penalises the failure to delete, destroy or report any child pornographic material that has been found to be stored or in possession of any person with an intention to share or transmit the same. For Section 15(1), the necessary foundational facts that the prosecution may have to first establish is the storage or possession of any child pornographic material and that the person accused had failed to delete, destroy or report the same, said the apex court.

 

Section 15(2) of the 2012 Act penalises both the actual transmission, propagation, display or distribution of any child pornography as well as the facilitation of any of the above mentioned acts. To constitute an offence under this section, apart from the content's storage, there should be either the actual transmission, propagation, display or distribution or its facilitation, said the apex court. Section 15(3) of the 2012 Act penalises the storage or possession of any child pornographic material when done for any commercial purpose. Besides its storage, the prosecution must further prove any fact that might indicate that the same had been done to derive some form of gain or benefit or expectation of the same, said the apex court.  End

 

Reported by Surya Tripathi

Edited by Ashish Shirke

 

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