Illustration for The Hindu: Satheesh Vellinezhi
The story so far: In a far-reaching verdict that clarifies the penal consequences of dealing with online sexual material involving children, the Supreme Court has underscored that viewing, downloading, and storing of such content are all offences under the Protection of Sexual Offences Against Children (POCSO) Act, and that criminal liability not be limited to creating, uploading and transmitting the material.
How did the matter reach the Court?
An alliance of non-government organisations filed an appeal before the top Court against a Madras High Court order quashing criminal charges against a young man who was sought to be prosecuted for viewing and storing video clips featuring children being exploited for sexual acts. The police had booked him after getting information from the National Crime Records Bureau (NCRB) that the accused had downloaded the material on his mobile phone. The police later filed a charge-sheet under Section 67B of the Information Technology Act, 2000, and Section 15(1) of POCSO.
Section 67B, introduced in the IT Act in 2009, provides for a jail term up to five years for the first offence, and up to 10 years for a subsequent offence that involves publishing or transmitting material depicting children in sexual acts in electronic form. It also allows for a fine of up to ₹10 lakh. Section 15(1) provides for a three-year jail term for those storing child abuse material for commercial purposes. Subsequently, Section 15 was expanded to include other forms of offences related to online content on child sex abuse. The organisations were aggrieved by the High Court’s order invalidating the criminal case, and were allowed to file an appeal, even though they were not parties in the original case.
What did the High Court order say?
The High Court ruled that mere possession or storage any pornographic material was not an offence under POCSO. Further, it said Section 67B of the IT Act only made transmission, publication or creation of material depicting children an offence, but mere watching or downloading of child abuse material in the private domain was not punishable. Hence, it quashed the case, holding that no offence had been committed either under POCSO or the IT Act. In other words, possession and storage of such material would not be a crime, but transmission or publication would be an offence.
How did the top Court deal with the ruling?
The Supreme Court held that the High Court decision was erroneous. It proceeded to clarify the scope of the various offences under Section 15 of POCSO, which had been amended in 2019 to penalise various acts relating to child sexual abuse material. It explained that the amended section provided for three distinct offences relating to sexually exploitative material concerning children. Section 15(1) penalises the failure to delete, destroy or report any child abuse material found to be stored or in possession of any person with an intention to share or transmit it. Sub-section (2) makes it an offence to transmit, propagate, display or distribute child abuse material. The third limb of the section seeks to punish storage or possession when done for commercial purposes.
What is ‘constructive possession’?
The Supreme Court has invoked the concept of ‘constructive possession’ to explain the severity of the offence after the word “possession” was included in addition to “storage” in the 2019 amendment to the section on child abuse material. It termed the possession or storage of child sexual abuse material as an “inchoate” offence, a criminal act done in preparation for a further offence. It explained that “constructive possession” extended the concept of possession beyond physical control to situations where an individual has the power and intention to control the contraband, even if not in immediate physical possession. “…wherever a person indulges in any activity such as viewing, distributing or displaying etc. pertaining to any child pornographic material without actually possessing or storing it in any device or in any form or manner, such act would still tantamount to ‘possession’ in terms of Section 15 of the POCSO, if he exercised an invariable degree of control over such material…,” the court said.
What are the court’s suggestions?
The principle that underpins the decision is that POCSO is a special legislation enacted to punish aggravated forms of offences related to sexual abuse and exploitation of children. Arguing that the term ‘child pornography’ trivialises the element of exploitation, the court has suggested the use of the term ‘child sexual exploitative and abuse material’ (CSEAM) instead.
Published – September 29, 2024 04:00 am IST
