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Why in the News?

In a recent ruling, the Supreme Court has tightened child pornography laws, declaring that viewing, possessing, or failing to report such content is punishable under the Protection of Children from Sexual Offences (POCSO) Act, regardless of whether the material is shared or transmitted.

What is the law in question?

• The Supreme Court expanded the interpretation of Section 15 of the POCSO Act, which deals with “Punishment for storage of pornographic material involving child”.
• In 2019, the POCSO Act was amended to introduce three connected offences under Sections 15(1), (2) and (3) with increasing grades of punishment:
  1. Any person, who stores or possesses pornographic material involving a child, but fails to delete, destroy or report the same to the designated authority with an intention to share or transmit child pornography.
  2. Any person, who stores or possesses such material for transmitting, propagating, displaying or distributing in any manner at any time except for reporting or use as evidence in court.
  3. Any person, who stores or possesses such material for commercial purpose.
• The court refers to these as “inchoate” offences – offences in anticipation or preparation for committing a further criminal act.

About the Case and SC’s Verdict

• Case Background: The Supreme Court was dealing with a case where the Madras High Court had quashed criminal proceedings against a man who had downloaded child pornography but did not share it.
  • The High Court had limited its ruling to Section 14 of POCSO (using children for pornography) and excluded Section 15 (punishing possession) since no evidence of sharing existed.
• Supreme Court’s Verdict:
  • The SC overturned the Madras High Court’s ruling, expanding the definition of “possession” of child pornography to include “constructive possession”, even without physical storage of the material.
  • Viewing, controlling, or exercising knowledge over such material (e.g., watching without downloading) was deemed sufficient for possession.
  • The SC stressed that even failing to delete or report such content implies intent to share and is punishable under Section 15(1).
  • Even if the accused does not have the material at the time of filing the FIR, they can still be held accountable if they had possessed it “at any point”.

How will such cases be registered?

• Determination of Intention: The court held that the intention (mens rea) of the accused will be determined based on the circumstances, such as how the material was stored or possessed and why it was not reported or destroyed.
  • Actions like storing, not deleting, or failing to report child pornography can be used as evidence of intent to share or distribute.
• Role of Police: The police must not limit their investigation to only one sub-section of Section 15. Even if a specific offence isn’t made out, the police should explore the possibility of other violations under different sub-sections.
• Reporting Obligation: The court emphasized the mandatory reporting of child pornography, with penalties for failing to report starting from a fine of Rs. 5,000 and increasing for repeat offences.Failure to report, even after merely viewing child pornographic material, can result in legal consequences.

Conclusion: The Supreme Court’s ruling on the POCSO Act broadened the definition of possession, emphasizing that failure to delete or report child pornography constitutes intent to share, with strict penalties for non-compliance, underscoring the obligation to report such content.