The court can examine whether viewing child sexual exploitation and abuse material (“CESAM”) is punishable under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (“POCSO Act”) and Section 67B of the Information and Technology Act, 2000 (“IT Act”). Can Section 30 of the POCSO Act (statutory presumption of culpable mental state) be invoked in a quashing petition?
Case Referred : Just Rights Of Children Alliance Vs. S. Harish
On 29 January 2020, the Police were informed that the accused person (“Respondent”) was an active consumer of CESAM (referred to as child pornography in the POCSO Act) and had allegedly downloaded material involving children on his mobile phone.
Subsequently, an FIR was registered against the Respondent under Section 67B of the IT Act (electronically publishing or transmitting material depicting children in sexual acts) and Section 14(1) of the POCSO Act (Punishment for using children for pornographic purposes). During the investigation, the Respondent revealed that he used to watch pornography in college. The Computer Forensic Analysis Report also found that the Respondent’s mobile had CESAM stored in it. Thus, when the chargesheet was filed, Section 14(1) was dropped and Section 15(1) (storage or possession of any pornographic material involving a child but a failure to delete, destroy or report it with an intention to share such material) was invoked.
The Respondent filed a petition to quash the criminal charges against him in the Madras High Court. On 11 January 2024, the High Court quashed the criminal proceedings by holding that mere watching or downloading of CESAM without any transmission or publication of the same was not an offence and the respondent had not used a child or children for pornographic purposes. The Appellants (a group of NGOs working against child trafficking and sexual exploitation) filed an appeal to the Supreme Court against the judgment of the High Court.
Submissions of the Applicant
Mr. H.S. Phoolka, Senior Counsel for the appellants, argued that the High Court’s interpretation of the POCSO Act, which held that mere possession of child pornographic material does not constitute an offense, endangers children’s well-being and risks proliferating child pornography. He referenced the Convention on Cybercrime and the UN Convention on the Rights of the Child, 1989, to emphasize the global commitment to combating child exploitation.
Mr. Phoolka highlighted that the chargesheet, based on information from the U.S. National Commission for Missing and Exploited Children (NC-MEC), confirmed the accused had been watching child pornographic videos for two years. He criticized the High Court for focusing on Section 14(1) of the POCSO Act, which addresses the use of children for pornography, while neglecting Section 15(1), which penalizes downloading and failing to delete such material. He contended that the respondent’s claim of receiving two files via WhatsApp is unsubstantiated and contradicted by the NC-MEC report.
The counsel argued that the High Court erred in quashing criminal proceedings without considering Section 15, undermining national and international child welfare commitments. He also pointed out the failure to distinguish between adult and child pornography, as Sections 67 and 67A of the IT Act address adult content, whereas Section 67B imposes stricter penalties for child pornography-related offenses.
Mr. Phoolka further asserted that under Section 30 of the POCSO Act, the High Court was obligated to presume the accused’s culpable mental state. He concluded that a combined reading of Section 67B of the IT Act, and Sections 15 and 30 of the POCSO Act, unequivocally establishes liability for possession of child pornography.
Submissions of the Respondent
Mr. Prashant S. Kenjale, counsel for the respondent (accused), argued that the FIR under Section 14(1) of POCSO and Section 67B of the IT Act did not render the High Court’s order erroneous. He highlighted that the videos on the respondent’s phone were dated 14.06.2019, prior to the 2019 amendment to Section 15 of POCSO. The files, named VID-20190614-WA005.mp4 and VID-20190823-WA0020.mp4, indicated automatic downloading via WhatsApp’s auto-download feature, supported by forensic evidence showing they were neither accessed nor modified.
Mr. Kenjale contended that mere possession of the videos does not constitute an offense under Section 15(1) of POCSO, as there was no intent to share or distribute them. He argued that even if the respondent viewed the videos once and failed to delete them, the lack of public awareness about the law exempts him from liability.
He emphasized the respondent’s bona fide belief and ignorance of the law, asserting it negates criminal intent. To support this, he cited Chandi Kumar Das Karmarkar v. Abanidhar Roy (AIR 1965 SC 585) and Motilal Padampat Sugar Mills Co. Ltd. v. State of U.P. (1979) 2 SCC 409. Thus, he maintained the respondent’s actions did not violate Sections 15 of POCSO or 67B of the IT Act.
Court’s observation
The Court observed that in a case of ‘child pornography’ while the victimisation of the minor starts with the sexual act, it continues and deepens with the recording of the act, the perpetuation of photos and videos, and creates a “ripple of trauma” for the child.
Justice Pardiwala suggested that the term “child sexual exploitative and abuse material” that he abbreviated as ‘CSEAM’ was a more appropriate terminology for the heinous act, instead of ‘child pornography’. “It undermines the victimisation because the term suggests a correlation to pornography, conduct that may be legal, whose subject is voluntarily participating in, and…capable of consenting to the conduct.”
The judgement urges Parliament to “seriously consider” amending the POCSO to substitute ‘child pornography’ with ‘CSEAM’. It urged the Union to consider bringing about the suggested amendment through an ordinance, to ensure swift action. It also issued notice to all courts to not use the term ‘child pornography’ in judicial orders and judgements.
Court’s Decision
The Court directed the Ministry of Women and Child Development to implement comprehensive sex education programs to create awareness on legal and ethical ramifications of child pornography. It also directed that victims of child pornography be provided psychological counselling, therapeutic interventions, and educational support. It suggested that public campaigns on child sexual exploitative material should be organised, and at-risk young people with ‘problematic sexual behaviour’ (PSB) be identified and supported by educators, healthcare providers and law enforcement. It directed schools to implement programs for early identification and intervention for children with PSB.
The Court directed the Union to constitute an Expert Committee that would devise a comprehensive program for health, sex education and POCSO awareness among children.