The Supreme Court, on Monday, March 11, termed “atrocious” Madras High Court judge Justice Anand Venkatesh’s ruling that merely downloading and watching child sexual abuse content in private does not constitute an offence under the Information Technology (IT) Act and the Protection of Children from Sexual Offences (POCSO) Act.
A three-judge bench headed by Chief Justice of India (CJI) DY Chandrachud, and comprising Justices JB Pardiwala and Manoj Misra made the observation while hearing an appeal filed by Just Rights for Children Alliance, a coalition of NGOs, against the HC order. The court also issued notice and sought the response of the Tamil Nadu government and others in the matter within four weeks.
In January, the Madras High Court had quashed a first information report (FIR) and criminal proceedings against a 28-year-old Chennai man, holding that watching child pornography in private would not fall within the scope of the POCSO Act. The single-judge bench of Justice N Anand Venkatesh reasoned that the accused had merely downloaded the material and watched the child sexual abuse content in private and it was neither published nor transmitted to others.
The Chennai police registered an FIR under Sections 67 B of the Information Technology Act and Section 14(1) of the POCSO Act after it seized the phone of the accused and discovered that he had downloaded and possessed child pornography. The judge noted that under section 14(1) of POCSO Act, “A child or children must have been used for pornography purposes”. "Since he has not used a child or children for pornographic purposes, at best, it can only be construed as a moral decay on the part of the accused person," the judge said.
Further, he said that to constitute an offence under section 67-B of IT Act, the accused person must have “published, transmitted, created material depicting children in a sexually explicit act or conduct … It does not cover a case where a person has merely downloaded in his electronic gadget, child pornography and he has watched the same without doing anything more,” the court observed.
"How can a single judge say this? This is atrocious,” the apex court said about the HC order.
Senior advocate HS Phoolka, assisted by advocate Saksham Maheswari, represented the appellants Just Rights for Children Alliance, a coalition of NGOs, and Bachpan Bachao Andolan. The appellants argued that this order by the Madras HC would give the public the impression that both downloading and watching child sexual abuse content is not an offence.
(With IANS inputs)