The Supreme Court on September 23 said that even viewing, possessing, and not reporting such content is punishable under the Protection of Children from Sexual Offences (POCSO) Act regardless of whether it is shared or transmitted further.
Supreme Court observations
- The Supreme Court set aside a single-judge Bench order of Madras High Court, which had quashed criminal proceedings against a 28-year-old man who had downloaded two pornographic videos involving children on his phone.
- The Supreme Court Bench expanded the interpretation of Section 15 of the POCSO Act, which deals with the “Punishment for storage of pornographic material involving child”.
- Originally, the provision was restricted to cases where a person stored child pornographic material “for commercial purposes”.
- The Supreme Court Bench said that Section 15 was not limited to punishing the sharing or transmitting of child pornographic material, and could even be used to punish the “intent” to commit such an act.
- The Supreme Court expanded the definition of “possession” in child pornography cases to include cases where the individual may not have physical possession of child pornographic material, but they have “the power to control the material in question and the knowledge of exercise of such control”.
- The court termed this “constructive possession” and held that “viewing, distributing or displaying” such material would still amount to it being in the accused’s “possession” under Section 15.
About POCSO Act
- Enacted in 2012, the Protection of Children from Sexual Offences (POCSO) Act is a comprehensive legal framework in India designed to safeguard children from sexual abuse and exploitation.
- It specifically protects minors under the age of 18 from various forms of sexual offences, including sexual assault, harassment, and pornography.
- The POCSO Act, 2012, received the President’s assent on June 19, 2012, and was officially notified in the Gazette of India the following day. The Act defines a “child” as any person below the age of 18.
- In 2019, the POCSO Act was amended to introduce three connected offences under Sections 15(1), (2) and (3) with increasing grades of punishment — from fines to a three to five year jail sentence.
These provisions punish:
- Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography;
- Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court; and
- Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose.
