Watching child pornography in private is not an offence, says Madras High Court

The High Court of Madras has held that watching pornographic content containing children in private is not an offence under the Information Technology Act, 2000 and the Protection of Children from Sexual Offences Act, 2012.

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RECENTLY, the High Court of Madras held that downloading and watching child pornography per se is not an offence under Section 67B (punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form) of the Information Technology Act, 2000 (IT Act).

Justice N. Anand Venkatesh of the high court held that merely watching child pornography does not constitute an offence under Section 14(1) (punishment for using a child for pornographic purposes) of the Protection of Children from Sexual Offences Act, (POCSO Act) 2012.

Brief facts

A letter was received from the additional deputy commissioner of police that the petitioner (Harish) had downloaded pornographic materials containing children on his mobile phone.

The date when the petitioner downloaded the pornographic material is not mentioned in the facts of the case. Upon receiving the letter, a first information report was registered on January 29, 2020, for offences under Sections 67B of the IT Act, 2000 and 14(1) of the POCSO Act.

The petitioner's phone was sent to the forensic science department during the investigation. It identified two files containing pornographic content involving children. In those two videos, it was found that two minor boys were involved in sexual activity with a girl or an adult woman.

The POCSO Act defines a child as a person who is below the age of eighteen years.

After the conclusion of the investigation and based on the final report of the police, a district court took cognisance of the offences under Section 67B of the IT Act and 14(1) of the POCSO Act.

Against this, the petitioner filed a petition to quash the proceedings under Section 482 of the Code of Criminal Procedure.

On January 4, 2024, the petitioner appeared before the court When the matter was taken up again, the petitioner admitted before the court that he has a habit of watching pornography.

He further admitted that he had never attempted to publish or transmit any of the pornographic materials to others.

The petitioner had merely downloaded the pornographic content and watched it in privacy.

What did the Madras High Court say?

On January 11, the high court pursued the pornographic content available on the petitioner's phone and found that only two videos could be identified as child pornography.

The court further acknowledged that the videos were neither published nor transmitted to others.

Based on these two considerations, the court stated that for an offence to be made out under Section 14(1) of the POCSO Act, a child or children "must have been used for pornography purposes".

That is, the petitioner would only be liable for an offence under Section 14 if he had used a child for pornographic purposes.

Further, the court held that watching a child pornography video does not 'strictly' fall within the scope of Section 14(1) of the POCSO.

In this regard, the high court said: "Since he [petitioner] has 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."

Further, the court held that for an offence under Section 67B of the IT Act, 2000, the video content must be "published, transmitted, created material depicting children in sexually explicit act or conduct".

In this regard, the court held: "A careful reading of this provision does not make watching child pornography, per se, an offence under Section 67B of the IT Act, 2000."

Additionally, the court held that Section 67B "does not cover a case where a person has merely downloaded in his electronic gadget a child pornography and he has watched the same without doing anything more."

The high court relied on the September 5, 2023 Order of the Kerala High Court which ruled that watching pornography privately without exhibiting it to others does not amount to an offence under Section 292 (sale, etc, of obscene books) of the Indian Penal Code.

Based on all these considerations, the High Court of Madras held that the petitioner has not committed any offence under Section 67B of the IT Act, 2000 and Section 14(1) of the POCSO Act.

Other observations

The high court while declaring that these observations should not concern the merits of the case, stated that teenagers are facing new challenges from gadgets, which bombard them with all kinds of information without any censor, including addiction to watching pornographic content.

The court said: "Porn addiction, like other substances or 'things' that people can become addicted to, can be understood through principles of 'operant conditioning'."

It added: "This is where a certain behaviour, watching porn in this case, is 'reinforced'', rewarded, which in turn makes you want to do it again (and again)… Porn can be especially reinforcing because the reward taps into a very basic instinctual drive-sex."

The court stated that due to the accessibility of sexually explicit material on the internet, porn addiction is becoming a growing concern in teenagers. It cited a study which suggests that nine out of 10 minor boys are exposed to some form of pornographic content. Whereas, six out of 10 girls are exposed to pornography.

The study notes that teenage boys between 12–17 years of age have the highest risk of developing porn addiction. On average, a male's first exposure to pornography is at 12 years old.

It suggested that instead of punishing the child for watching pornographic content, society must be mature enough to properly advise, educate and counsel them to get rid of the addiction.

The court has advised the petitioner to attend counselling if he still finds himself addicted to watching pornography. In this regard, the court held that continuation of the criminal proceedings against the petitioner would be an abuse of the process of court and therefore quashed all proceedings against the petitioner.

What does the law say about child pornography?

The law on child pornography is regulated by the POCSO Act along with the IT Act.

Section 14 of the POCSO Act is invoked in cases where a child is engaged for pornographic purposes. Whereas, Section 15 is invoked in cases where child pornographic content is stored or possessed in electronic devices to share or transmit the material. Section 67B of the IT Act is similarly worded.

The interpretation of Section 15 suggests that downloading child pornographic material is illegal because the law requires that the content should be deleted, destroyed or reported to the concerned authorities. If the content is not removed, an intention could be associated that it was stored or possessed to share or transmit it. 

Click here to read the order.