Hindu Icon: Satheesh Vellinezhi
The story so far: In a far-reaching decision clarifying the penal consequences of engaging in online sexual material involving children, the Supreme Court emphasized that viewing, downloading, and maintaining such content are offenses under the Protection of Child Sexual Offenders Act (POCSO), and that the criminal offense is not limited to creating, uploading and transmitting material.
How did the matter reach the Court?
A coalition of non-governmental organizations filed a petition challenging the Madras High Court’s decision to quash criminal charges against a young man who wanted to be prosecuted for watching and keeping videos of children being sexually abused. The police booked him after receiving information from the National Crime Records Bureau (NCRB) that the accused had downloaded them 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 the POCSO.
Section 67B, introduced in the IT Act in 2009, provides for a prison term of up to five years for a first offence, and 10 years for a subsequent offense involving the publication or transmission of material depicting child sexual acts by electronic means. It also allows a fine of up to Rs 10 lakh. Section 15(1) provides for a three-year prison sentence for those who possess child abuse material for the purpose of sale. Subsequently, Section 15 was expanded to include other types of offenses related to child sexual abuse online content. These organizations were aggrieved by the Supreme Court’s order dismissing the criminal case, and were allowed to appeal, even though they were not parties to the original case.
What was the order of the Supreme Court?
The Supreme Court ruled that possession or possession of any obscene material was not an offense under POCSO. Further, Section 67B of the IT Act only made the transmission, publication or creation of child pornography an offence, but mere viewing or downloading of child abuse material in a private area was not punishable. Therefore, it dismissed the case, stating that no offense was committed under POCSO or the IT Act. In other words, possession and storage of such material may not be a crime, but transmission or publication may be.
How did the Supreme Court handle this decision?
The Supreme Court said that the High Court’s decision was wrong. It went on to clarify the scope of various offenses under Section 15 of POCSO, which was amended in 2019 to punish various acts related to child sexual abuse. It explained that the amended section provides for three separate offenses relating to child sexual abuse. Section 15(1) punishes failure to remove, destroy or report any child abuse material found in the possession or possession of any person with the intention of sharing or transmitting it. Subsection (2) makes it an offense to transmit, distribute, display or distribute child abuse material. The third part of the section seeks to punish the storage or possession when it is done for commercial purposes.
What is ‘constructive property’?
The Supreme Court used the concept of ‘constructive property’ to define the seriousness of the offense after the word “property” was added in addition to “storage” in the 2019 amendment to the child abuse section. It called the possession or possession of child sexual abuse material an “extraordinary” crime, a crime committed in preparation for another crime. It explained that “constructive possession” extended the concept of possession beyond physical control to situations where a person has the power and intention to control the sale, even if it is not physical. “…wherever a person engages in any activity such as viewing, distributing or displaying etc. relating to any obscene material for children without possessing or storing it on any device or in any way or manner, that act will still be considered ‘property’. ‘ according to Section 15 of POCSO, if he applies an inflexible standard to control such things…,” the court said.
What are the court’s suggestions?
The principle behind this decision is that POCSO is a special law enacted to punish the most serious types of crimes related to sexual abuse and exploitation of children. Arguing that the term ‘child pornography’ undermines the element of exploitation, the court suggested that the term ‘child sexual abuse material’ (CSEAM) be used instead.
Published – September 29, 2024 04:00 am IST