Udaipur- In a significant development in the realm of child rights and legal jurisprudence, the Supreme Court of India has decided to review a controversial ruling by the Madras High Court regarding the legality of downloading and viewing child pornography. This decision has been met with widespread acclaim from child rights activists, who view it as a crucial step towards combating the online sexual exploitation of children.
The Madras High Court's ruling, issued on January 11, 2024, had sparked outrage and concern among child rights advocates and legal experts alike. The court had quashed a First Information Report (FIR) and dismissed criminal proceedings against an individual from Chennai who had downloaded and viewed child pornography on his mobile phone.
The High Court's rationale for this decision was based on the assertion that watching child pornography in private did not constitute an offense under the Protection of Children from Sexual Offenses (POCSO) Act, 2012.
However, this ruling was met with sharp criticism, with many arguing that it could potentially normalize and perpetuate the demand for child pornography, thereby exacerbating the exploitation of vulnerable minors. In response to the Madras High Court's decision, the Just Rights for Children Alliance, a coalition of NGOs dedicated to child protection, challenged the ruling in the Supreme Court.
Just Rights for Children alliance is a coalition formed by 5 NGOs with over 120 NGOs as partners working throughout India against child sexual exploitation, child trafficking and child marriage.
Terming the Madras High Court decision on child pornography as ‘atrocious’, the Supreme Court of India has issued notice to the Tamil Nadu government after the coalition of NGOs, challenged the order.
The Supreme Court's decision to review the Madras High Court ruling has been hailed as a significant victory for child rights activists. Dr. Shailendra Pandya, a prominent Child Rights Activist and Director of Gayatri Seva Sansthan in Udaipur, and a partner of the Just Rights for Children Alliance, lauded the court's swift action.
Speaking with The Mooknayak Dr. Pandya emphasized the importance of recognizing that the crime of child pornography knows no boundaries and is being monitored closely by law enforcement agencies globally. He described the Supreme Court's decision as a crucial step in safeguarding children from online sexual abuse.
"This is an important decision because it shows that a crime of child pornography being done in the privacy of one’s home is being watched and monitored across the globe by the police in the district, state, Delhi, and the United States of America. The urgency shown by the Supreme Court in this case is a remarkable step in the fight to combat the online sexual abuse of our children," Pandya said.
Talking about the case, H.S. Phoolka, Senior advocate, said, “This is a watershed moment in the endeavour to ensure the right to justice because the Supreme Court has accepted that even in a criminal case, a third party not directly affected by the crime can approach the higher judiciary if travesty of justice has been done or if justice has been denied.”
Notably, there has been a glaring increase in child pornography cases in the country, rising from 44 cases in 2018 to 1171 cases in 2022, as per the data by the National Crime Records Bureau.
In a conversation with The Mooknayak, Advocate Pooja Upadhyaya shared her insights on the challenges surrounding the implementation of the POCSO Act. "Sections 14 and 15 of the POCSO Act cover a wide range of offenses related to child pornography," she explained. "However, there's a pressing need to evaluate whether our investigative agencies possess the necessary tools and understanding to effectively address such crimes."
As per statistics revealed by a research paper titled 'Justice Awaits: An Analysis of the Efficacy of Justice Delivery Mechanisms in Cases of Child Abuse,' which was published by the India Child Protection Fund (ICPF), estimations suggest that India will take almost nine years, assuming no new cases are added, to clear the backlog of cases pending under POCSO as of January 31, 2023.
Despite various policies, efforts, and financial commitments, 2,43,237 cases were pending in the country's special fast-track courts created to hear POCSO cases.
Even if not a single new case is added to this number of pending cases, it will take at least nine years to dispose of all these cases. Talking about Rajasthan, considering the current situation of 8921 case pendency, it will take about ten years to settle the pending POCSO cases.
The Madras High Court, on January 11, 2024, made a highly-publicized ruling regarding a case involving the possession and viewing of child pornography.
The court quashed the First Information Report (FIR) and dismissed criminal proceedings against a 29-year-old Chennai resident, asserting that watching child pornography did not constitute an offense under the POCSO Act, 2012.
The accused had downloaded illicit material involving minors onto his mobile phone, triggering police action, albeit without a formal complainant. Despite the discovery of incriminating evidence during the investigation, the Madras High Court contended that the accused's actions, conducted in privacy and without dissemination, did not warrant legal repercussions.
The High Court had said that since the accused had not used a child or children for pornographic purposes, at best, it can only be construed as a moral decay on the part of the accused person. The Madras HC had relied on a Kerala HC judgment to exonerate the culprit charged under the IT and the POCSO Acts.
A coalition of NGOs, and Bachpan Bachao Andolan challenged the Madras High Court order.
Stating the Madras High Court had erroneously relied on Kerala HC order, the petition said, “The nature of the content and the involvement of minors in the material make it subject to the provisions of the POCSO Act, rendering it a distinct offence from the one considered in the Kerala High Court's judgment.”
Challenging the High Court order, the NGOs argued that the impression is given to the general public that downloading and possessing child pornography is not an offence. “It would increase the demand for Child pornography and encourage people to involve innocent children in pornography,” the petitions said.
The Supreme Court allowed the application of the Just Rights for Children alliance to appeal against the judgement of the Madras High Court.
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