On Monday, the Supreme Court ruled that watching or storing child pornography on digital devices can be considered an offence under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), but only if there is an intention to gain some form of advantage from it. This decision came in the case of Just Right for Children Alliance and Anr v. S. Harish and Ors., where the Court clarified the legal requirements for prosecution under Section 15 of the POCSO Act.
A Bench led by Chief Justice of India DY Chandrachud, along with Justice JB Pardiwala, overturned a Madras High Court ruling, explaining that for an act of watching or storing such material to be an offence, there must be clear mens rea—the intent to distribute, transmit, or facilitate its distribution.
The Court ruled that, “For an offence under Section 15(2) of the POCSO Act, the accused must have an intention to transmit or share the material. Mere storage does not suffice; there must be evidence of facilitation or preparation for distribution. Under Section 15(3), storing child pornographic material alone is not enough—there must be an intent to derive some gain or advantage from it.”
Furthermore, the Supreme Court criticized the use of the term ‘child pornography’ and suggested that Parliament should amend the POCSO Act to instead refer to such content as ‘child sexually abusive and exploitative material.’ The Bench even recommended an ordinance to formalize this change, advising lower courts to avoid using the term ‘child pornography’ in future rulings.
The ruling came after an appeal was filed by the NGO Just Right for Children Alliance challenging a Madras High Court decision, which had previously held that privately watching child pornography did not constitute an offence under the POCSO or IT Act. That earlier verdict had been delivered by Justice N. Anand Venkatesh, who quashed charges against S. Harish, a man accused of downloading and viewing child pornography on his mobile device.
Justice Venkatesh’s ruling had also addressed the issue of rising porn addiction among youth, advocating for a balanced approach in dealing with such cases. However, during the appeal in March, the Supreme Court sharply criticized the High Court’s stance, describing its observations as “atrocious.”
The Kerala High Court also weighed in on a related issue recently, ruling that accidental or automatic downloading of child pornography does not constitute an offence under the Information Technology Act.
In 2022, the Supreme Court rejected a petition calling for data collection to explore a possible link between viewing pornography and committing sexual offences. This ruling underlines the judiciary’s careful approach in distinguishing between private acts and intent to harm or exploit.
