"Watching pornography may not be an offence, but a child used in pornography will be an offence”: SC

Chief Justice made this remark while reserving his order on a plea challenging the Madras High Court judgement

Digital Desk: Chief Justice DY Chandrachud stated on Friday as quoted by India Today that while "watching pornography may not be an offence, a child used in pornography will be an offence." He made this remark while reserving his order on a plea challenging the Madras High Court judgement that downloading child pornography was not an offence under the Protection of Children from Sexual Offences (POCSO) Act.

During the brief hearing, a bench comprising CJI Chandrachud and Justice JB Pardiwala remarked, "Watching pornography may not be an offence, but the High Court has said watching child pornography is also not an offence. A child watching porn may not be an offence, but a child being used in pornography will be an offence. Anyway, we will look into it. We will pass orders."

The top court was hearing a plea by the NGO 'Just Right for Children Alliance', which has challenged the Madras High Court judgement in the POCSO case concerning the downloading of child pornography.

Senior advocate HS Phoolka, representing the NGO, argued, "The POCSO Act says that if any video or photo is there, you need to delete the same. And in this case, the accused was constantly watching the video. He watched it for two years, according to the report from NETMEG. The first video was before the amendment, but the second was after the amendment."

In response, the Chief Justice asked, "Someone receiving the video on WhatsApp is not an offence?" Justice Pardiwala also queried, "Is it an offence to keep the video on his mobile phone for two years?"

The counsel for the respondent explained, "The video in question was auto-downloaded in WhatsApp. This file comes to WhatsApp and is auto-downloaded if the WhatsApp setting is kept on by an individual."

The court then examined the amendment to the POCSO Act in 2019. After reviewing the amendment, the Chief Justice said, "After the amendment, this becomes an offence. How can you not know that this video is there on your phone?"

After hearing both sides, the court reserved its judgement.

In January this year, the Madras High Court ruled that downloading child pornography is not an offence under POCSO or the Information Technology Act since such actions were taken "in privacy without affecting or influencing anyone else."

The High Court had dismissed the proceedings against a 28-year-old man charged with downloading child pornographic content to his mobile phone.

The NGO Just Rights for Children Alliance approached the Supreme Court challenging the High Court order, stating that this would encourage child pornography and go against the well-being of children.

"The impression is given to the general public that downloading and possessing child pornography is not an offence, which would increase the demand for child pornography and encourage people to involve innocent children in pornography," the plea stated.