Downloading or watching child porn not a crime under POCSO and IT Act, Gen Z kids grappling with porn addiction, need education not punishment: Madras HC

The judgment said, "To make out an offence under Section 14(1) of the Protection of Child from Sexual Offences Act, 2012, a child or children must have been used for pornography purposes. Even assuming that the accused person had watched child pornography video, that strictly will not fall within the scope of Section 14(1) of the Protection of Child from Sexual Offences Act, 2012."

The Madras High Court recently pronounced that the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act do not render it illicit to access or see child pornography on a personal electronic device. The legal proceedings against a man named S Harish who was charged under the POCSO Act and the IT Act for downloading and watching two child pornographic footage on his phone were dismissed by Judge N Anand Venkatesh.

The Court also emphasised the surge in youth porn addiction at the conclusion of the ruling. Justice Venkatesh called for a methodical approach to address the matter and stated, “The Generation Z Children are grappling with this serious problem and instead of damning and punishing them, the society must be mature enough to properly advise and educate them and try to counsel them to get rid of that addiction.”

It shed light on the surge in teenage addiction to porn and stressed, “There is adult material, which also draws the attention of the children whose mental faculty is at a growing stage. There used to be an addiction to smoking, drinking, etc. and there is a growing rise in addiction to watching porn photos/videos. This is easily available and by repeatedly watching the same, it becomes a habit and ultimately, the person gets addicted.”

According to a recent study cited by him, six out of ten girls and nine out of ten boys are exposed to pornography before the age of eighteen. Pornography viewership can have a significant impact on a teen’s physical and psychological health in the long run. It mentioned, “The education must start from the school level since exposure to adult material starts at that stage itself.”

The High Court observed that although the accused acknowledged being dependent on porn, he had never viewed any child porn. Furthermore, it pointed out that the individual had not shared or distributed any pornographic videos which is a prerequisite for an offence under the two Acts to be committed. The Court further mentioned that he had offered to go through counselling to overcome this obsession.

The judge proclaimed, “To make out an offence under Section 14(1) of the Protection of Child from Sexual Offences Act, 2012, a child or children must have been used for pornography purposes. This would mean that the accused person should have used the child for pornographic purposes. Even assuming that the accused person had watched child pornography video, that strictly will not fall within the scope of Section 14(1) of the Protection of Child from Sexual Offences Act, 2012.”

The court added, “In order to constitute an offence under Section 67-B of the Information Technology Act, 2000, the accused person must have published, transmitted, created material depicting children in sexually explicit act or conduct. A careful reading of this provision does not make watching child pornography, per se, an offence under Section 67-B of the Information Technology Act, 2000.”

It remarked, “This Court hopes that the petitioner will listen to the advice and get rid of the addiction for a happy and healthy future. Quashing the criminal proceedings by itself will not help the petitioner and the petitioner has to help himself by getting rid of the addiction.”

In response to the file of the Sessions Judge, Mahila Neethi Mandram (Fast Track Court), Tiruvallur District the court asserted, “In the light of the above discussion, the continuation of the proceedings against the petitioner will amount to abuse of process of Court. That apart, it will be a stumbling block for the petitioner’s career in future. Therefore, this Court is inclined to quash the proceedings.”

Referencing a Kerala High Court decision, the judge highlighted that the components of a charge under Section 292 ( public exhibition of explicit matter) of the Indian Penal Code would only become active if someone attempted to print, distribute or display such recordings in public.

The judge stated that the concepts of “operant conditioning” can be used to understand the development of a pornographic addiction much like other substances or “things” that individuals can get dependent on. “This is where a certain behaviour, watching porn in this case, is ‘reinforced’, or rewarded, which in turn makes you want to do it again (and again). Lots of different things can be reinforcing, and thus influence our behaviour, but porn can be especially reinforcing because the reward taps into a very basic instinctual drive – sex. Therefore, it is very easy to become addicted to porn – it is accessing a fundamental (and very enjoyable) natural drive. It is also much easier to obtain than going out and finding a ‘mate’ to fulfil this drive.”

Attorney JN Naresh Kumar represented the petitioner while Additional Public Prosecutor A Damodaran appeared for Ambattur Police.