India’s Supreme Court on Friday chose to reserve judgment on the appeal to a lower court ruling that said downloading and watching child pornography is not a crime, although creating it remains illegal.
The Supreme Court invited children’s rights advocates to submit written arguments for further deliberation.
The Supreme Court heard an appeal to a January ruling by the Madras High Court in southern India, which dismissed criminal charges against a 28-year-old man accused of downloading child pornography on his mobile phone in 2019.
The Madras court said India’s Information Technology Act of 2000 allows criminal charges against a person who has “published, transmitted, and created material depicting children in sexually explicit act or conduct,” but a “careful reading of this provision does not make watching child pornography, per se, an offense.”
The court likewise found that India’s Protection of Children from Sexual Offenses (POCSO) Act of 2012 criminalized using children to create pornographic material but did not specify criminal penalties for watching such material, provided the accused did not distribute the pornography any further. The defendant in the case argued that his phone downloaded the offending material automatically, and he did not forward it to anyone else.
“Since he has not used a child or children for pornographic purposes, at the best, it can only be construed as a moral decay on the part of the accused person,” the Madras court said of the defendant.
The court added an expression of concern about the effect of children watching or participating in pornography, and said they should be counseled rather than punished:
The Generation Z Children are grappling with this serious problem and instead of damning and punishing them, the society must be mature enough to properly advise and educate them and try to counsel them to get rid of that addiction. The education must start from the school level since exposure to adult material starts at that stage itself.
In early March, the Indian Supreme Court said the Madras ruling was “atrocious,” and two non-governmental organizations (NGOs) — the Just Rights for Children Alliance of Faridabad and the Bachpan Bachao Andolan Association of New Delhi — filed an appeal.
However, the Supreme Court substantially agreed with the Madras High Court’s reasoning on Friday. The Supreme Court added that people who receive child pornography electronically should promptly delete it from their devices and could face criminal charges if they fail to do so. As it has reserved its ruling, its comments on Friday are not a final ruling on the matter.
The Supreme Court allowed India’s National Commission for Protection of Child Rights (NCPCR), a statutory body established in 2005, to submit written arguments for further deliberation.
“Ignorance cannot be a defense in such cases as there is a presumption of culpability under the POCSO Act,” NCPCR Senior Advocate Swarupama Chaturvedi said on Friday.
