Courts can’t be lenient on downloading child abuse material

India is grappling with an inexplicable and exponential increase in cases of CSAM. The HC decision will gravely harm the fight against child sexual abuse online

January 11, 2024, was a black letter day for the Madras high court (HC) when it held in Harish v. Inspector of Police that downloading and viewing child sexual abuse material (CSAM) or child pornography was not an offence. The Madras HC erroneously relied on a Kerala HC judgment under Section 292 of the Indian Penal Code of 1860 (IPC) to exonerate the culprit charged under Section 67B of the Information Technology Act, 2000 (IT Act) and under Section 14(1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), when clearly the same yardstick for pornography cannot be applied for child pornographic content. In doing so, the Madras HC has not only erred in interpreting the provisions but has probably caused grave harm in the fight against CSAM.

Madras high court (PTI)

The case was registered against the petitioner for downloading pornographic material featuring children on his mobile phone. The court found that the forensic report disclosed the presence of two files of child pornography of two underage boys engaged in sexual activity with an adult. Quashing is a special power that high courts may exercise to put an end to criminal prosecutions prematurely and without trial, where the facts in the complaint taken as a whole do not make a criminal offence. Any evaluation of whether the facts on record are true or not can only be gone into at the stage of trial. Strangely in this instance, at the stage of quashing, the petitioner was called to court and questioned and reliance was also placed on these statements, which were not tested through cross-examination. Significantly, the order stated that the petitioner admitted to downloading and viewing the pornographic content.

The law differs with respect to adult pornographic content as opposed to CSAM. In India, if pornographic content is generated using adults, the sale or distribution thereof inter alia is punished, but not the viewing of such content. This is not the case with CSAM, where globally there is zero tolerance for making or viewing such content. Hence, the yardstick valid for adult pornographic content cannot be applied to CSAM.

The facts explicitly elicited in the judgment unequivocally implicate the culprit charged with downloading and possessing two CSAM files of teen boys captured in sexually explicit acts. With CSAM having been found on the culprit’s devices and the same admittedly having been downloaded, there are sufficient grounds for sustaining the prosecution initiated and certainly no basis for premature termination of such prosecution, more so when there is an explicit recording in the judgment to the effect that the culprit admitted to downloading the CSAM content. The court erred at this juncture in equating CSAM with pornography and applying the yardstick relied on by the Kerala HC, which was dealing with a case under Section 292 of the IPC that mere viewing without publishing or transmitting pornographic content was not an offence, ignoring the explicit provision under Section 67B of the IT Act that makes even mere seeking, browsing or downloading CSAM an offence.

The Madras HC referred only to a part of sub-section (a) and (c) of Section 67B IT Act which makes publishing, transmission or causing such acts or cultivating, enticing or inducing children to online relationships for sexual abuse or facilitating abuse or recording abuse an offence. The court completely missed the explicit criminalisation under Section 67B(b) of the IT Act, which makes “creating, collecting, seeking, browsing, downloading, advertising, promoting, exchanging or distributing” child pornography a criminal offence and consequently and erroneously, quashed the proceedings against the petitioner.

It is extremely fallacious to hold that since words such as “viewing” or “watching” are not explicitly mentioned, the criminal was not liable, when the above provision makes even seeking, browsing or downloading, an offence. In the present instance, the court also records that the petitioner admitted to downloading such content, which is an offence explicitly under Section 67B(b) of the IT Act. Section 482 of the Criminal Procedure Code, 1973 (CrPC) is an inherent residual power with an HC, which the Supreme Court (SC) has often repeated and reiterated, is to be exercised sparingly and with caution. The present case violates this mandate by invoking this residual provision for a case, which clearly necessitates prosecution. It is a fit case for invoking the per incuriam principle where; in the words of justice Krishna Iyer in Mamleshwar Prasad v. Kanahaiya Lal, by “…obvious inadvertence or oversight a judgment fails to notice a plain statutory provision…”; in rare and glaring cases of obtrusive omission, a decision may be negated.

India is grappling with an inexplicable and exponential increase in cases of CSAM. The HC decision will gravely harm the fight against child sexual abuse online. This decision is reminiscent of a series of cases in the US starting with United States v. Goff, wherein a US district court held possession of child sexual abuse content in digital form a “victimless crime” and it took the appellate court to reverse this trend. It is now imperative for the SC to probably take suo motu cognisance of this decision and reverse the harm caused at the earliest, lest prosecutions against child abuse online or on digital media suffer further.

NS Nappinai is an advocate practising before the Supreme Court of India and the founder of the non–profit Cyber Saathi Foundation. The views expressed are personal