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The Supreme Court has suggested that Parliament amend the POCSO Act so that child pornography can be treated as sexually offensive material and exploitation of children
In a significant ruling, the Supreme Court on Monday, September 23 ruled that viewing and even storing pornographic material for children is also an offense under POCSO (Protection of Children from Sexual Offenses) while overturning the order of the Madras High Court which stated that ‘viewing child pornography only ‘ is not an offense under the POCSO.
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The verdict of the Madras High Court dismissed a criminal case against a 28-year-old man, who was accused of downloading and viewing pornographic content involving children on his mobile phone. The Supreme Court today reinstated the criminal proceedings against the accused, according to reports.
The Supreme Court said that the High Court made a “serious mistake.”" At the close of the criminal proceedings and the bench, comprising Chief Justice of India (CJI) DY Chandrachud and Justice JB Pardiwala, set aside the decision while remanding the criminal case.
The court ruled that from the defendant’s refusal in the present case to delete the material, destroy or report the material, it can be said that the basic facts necessary to activate the legislative presumption regarding a guilty mental state have been prima facie proven.
The order focused on Section 15 of the POCSO Act which stipulates the punishment for storing pornographic material involving children.
"Any person who stores pornographic material of a child and does not report it or destroys it, is liable to a fine of not less than five thousand rupees, and a repeat offense is liable to a fine of not less than ten thousand rupees. If the material is stored for further transmission or distribution, then along with a fine, the penalty is up to three years in prison. For storing pornographic material for children for commercial purposes, the sentence is three to five years in prison, and in a subsequent conviction, up to seven years in prison," says the section.
Justice Pardiwala said that in this case the mens rea should be gathered from actus rea – mens rea refers to the intention behind the crime and actus rea is the actual criminal act.
"We spoke about the continuing impact of child pornography on child victims and abuse… we proposed to Parliament to bring an amendment to POCSO… so that child pornography could be treated as sexually offensive material and child exploitation. We suggested that an order could be brought. We asked all the courts not to refer to child pornography in any order," said the bench.
The Chief Justice called it a "landmark judgment" and thanked Judge Pardiwala.
(Except translation, this story has not been edited by achinews staff and is published from a syndicated feed.)
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