Madras High Court on Child Porn: Reformation or Circumvention?

Introduction

In the case of S. Harish v. The Inspector of Police,¹ the Madras High Court recently quashed criminal proceedings against a person who was guilty of downloading and watching child pornography. Citing the appellant’s porn addiction, the court resorted to a reformative approach rather than a punitive approach. Though counselling is an essential aspect of getting rid of pornography, the court cannot ignore the statutory law and the legislative intent behind the same. In this article, we will discuss this case in detail and analyse the various provisions which were attracted.

What did the court say?

Section 14(1) of the Protection of Child from Sexual Offences Act, 2012 (hereinafter ‘POCSO Act’), Section 292 of the IPC and Section 67B of the Information Technology Act, 2000 (hereinafter ‘IT Act’) were dealt with by the court. Court dismissed the charges under Section 14(1) of the POCSO Act which deals with the use of children for pornographic purposes.² As the appellant had not used a child for purposes of pornography, it was held that he was not liable under this provision.³ The judge relied on Kerela High Court’s recent observation in the case of Aneesh v. State of Kerala⁴ wherein the court was of the opinion that watching pornography privately did not amount to an offence under Section 292. 

The main provision which deals with child pornography in the cyber context is Section 67B of the IT Act which penalizes certain activities related to child pornography.⁵ The court interpreted the Section in a liberal manner and stated that unless there is publication or transmission of child pornography, a person cannot be held liable.⁶ 

Section 67B

If we analyse the language of this provision, it clearly prohibits the downloading of child pornography as well. Clauses (a) and (b) of the Section read as, “(a) whoever publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or “(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner.”⁷ 

It is clear from a bare reading that the court focused only on clause (a) of the provision, but clause (b) which is another qualifying condition for making a person liable was ignored. The word ‘or’ after Clause (a) means that even if someone just downloads child pornography, he will be held liable under Section 67B. The reason behind this provision is to curtail the normalization and spread of degenerate content especially child pornography. Due to the adverse mental effects of such content on a person’s brain and subsequently his actions, viewers of child pornography can pose a threat to children. Keeping this in view, some sort of punitive action is necessary considering public good. 

Court’s Call for Reformation

The court cited statistical studies related to the increasing prevalence of pornographic content among teenagers. From a psychological perspective, it conceded that it was easy to become addicted to porn due to its easy accessibility.⁸ Further, the court advised the petitioner to get rid of his porn addiction by taking assistance from professional counsellors.⁹

Though this wise observation is indeed a compassionate approach to tackle the evil of porn addiction, but statutory law is explicit in this regard as the punishment for this offence may extend to a five-year sentence and a fine of rupees ten lakh.¹⁰ Moreover, mere probability of reformation in itself is very far-fetched. In such cases, the courts must resort to an approach which has elements of both – reformation as well as punishment. 

Considering the harsh reality of sexual abuse of children and women in the porn industry, this matter must not be taken lightly. Compulsory reformative imprisonment of such persons must be ordered by the courts and some sort of fine must be imposed in order to deter such activities. By reformative imprisonment, it is meant that rehabilitation must be state sponsored.

It is difficult to track a person’s counselling schedule or any step on his part once proceedings have been quashed against him. In the absence of supervision, such a person may again fall into the pit of porn addiction. Therefore, a rehabilitative cum punitive approach would be a precautionary measure which may be instrumental in dealing with such cases holistically. 

Conclusion

The Madras High Court’s well-intended decision may be used by child porn addicts as a circumvention mechanism. Anyone may get away by shedding a tear or two in front of the judge and giving an uncertain hope of counselling and reformation. Section 67B of the IT Act is a conspicuous provision which specifically criminalises the downloading and browsing of child pornography. 

Instead of outrightly discarding the punitive aspect, it must be harmoniously constructed with the reformative aspect. As child pornography is a serious offence, the State must take stringent measures in pursuance of its annihilation in the minutest of form. As porn addiction is capable of inducing action, it can have fatal consequences.

The duty of the State is to safeguard the rights of the children and their dignity. This duty of the State can be derived from Article 39(f) which states that children must be given opportunities to develop in a healthy and dignified manner and must be protected from moral and material abandonment.¹¹ Therefore, keeping all these technicalities in mind, well calculated steps must be taken by the legislature as well as the judiciary.