Even storing of child porn is a POCSO offence

Recently, the Supreme Court reversed a judgement by the Madras High Court, which had earlier exempted the act of simply storing child pornographic content in one’s device from penal provisions under the Protection of Children From Sexual Offences Act, 2012 ( POCSO). Observing that the inability to delete or report such content implies an intention to transmit or share, the Supreme Court restarted criminal proceedings against the accused in this case. 

In this Weekly, we tell you how the Indian law punishes the acts of storing, indulging in or sharing child pornographic material in India.

What constitutes the crime of child pornography?

According to Section 13 of the POCSO Act, if anyone represents a child in any form of media (broadcast, Internet or print) either in real or simulated sexual acts; or portraying any sexual organs of a child; or any other obscene representation for the purpose of personal sexual gratification or for distribution, they would commit the crime of child pornography. 

What are the punishments for child pornography? 

Section 14 of the POCSO Act lays down a minimum of seven years of imprisonment and/or a fine for the crime of child pornography. Further, Section 67-B of the Information Technology Act, 2000 punishes anyone who publishes or transmits any child pornographic content through any media with imprisonment of five years which can be extended to seven years and/or a fine.

Does only publishing or transmitting child pornography attract punishment?

No, Section 15 of the POCSO Act specifies that even storage or possession of child pornographic material is an offence. This section further clarifies that if anyone stores or is in possession of child pornographic material without deleting, destroying or reporting it to the police with the intention of sharing it, will be liable to be punished with a fine amounting to Rupees 10,000. Moreover, with the exception of evidence before a court of law,  If anyone is found in possession of child pornographic for the purpose of transmiting, distributing or for facilitating child pornography, they can be punished with jail time up to seven years and/or a fine. The Act also punishes anyone who stores or possesses child pornographic material for commercial purposes with jail time up to seven years and/or a fine. 

What did the Supreme Court say?

In the current case, the Supreme Court further clarified that storage and possession of child pornographic material even without actual transmission is an offence under the POCSO Act. if the manner in which it was stored and the circumstances around the non-deletion or non-reporting of the materials imply intention to transmit, it will constitute a crime. The court further held that storing of child pornographic material at any point of time would make the possessor culpable, irrespective of whether or not it was deleted before the start of the criminal proceedings. Finally, the Court recommended that ‘child pornography’ as a term be replaced with ‘child sexual exploitative and abusive material’ to better depict the nature of the offence. 

To know more about child pornography and how to complain against it, read our explainer here.