Cheshta TaterCo-Founder, Rightantra Ever since the birth of the Internet, the Government and social activists have been engaged in an ardent attempt to end the production and dissemination of pornography on it, more particularly child pornography. Such attempts are enshrined in the Protection of Children from Sexual Offences Act (“POCSO”) and the Information Technology Act, 2000 (“IT Act”). The Madras High Court recently granted anticipatory bail to a man accused of viewing child pornography. Read more about this case here. PG Sam Infant Jones v. State involves the accused viewing child pornographic material in private. One must wonder how the incident came to light if it was done in private. Reporting of this incident was enabled by the tie-up between National Crime Records Bureau (“NCRB”) and an NGO, National Center for Missing & Exploited Children (“NCMEC”). A Memorandum of Understanding between the two organisations facilitates a ‘Cyber Tipline’ that provides access to the material available with NCMEC whereby viewers of child pornography can be identified.
Justice GR Swaminathan noted that engaging in child pornography is a serious offence but drew a distinction between a regular consumer and a one-time viewer. Given that arrests are to be limited to just necessary and the accused has only viewed and shared this content once, anticipatory bail was granted to him. This was done especially taking into account that the incident had occurred almost a year prior to the hearing. He went on to observe that there is a difference between viewing pornography and viewing child pornography, “Viewing pornography privately will not constitute an offence. Offence is an act that is forbidden by law and made punishable. That is the definition found in Section 40 of IPC. As on date, there is no provision prohibiting such private acts. There are some who even elevate it as falling within one’s right to free expression and privacy. But child pornography falls outside this circle of freedom [...] Section 67-B of the Information Technology Act, 2000 penalises every kind of act pertaining to child pornography [...] Therefore, even viewing child pornography constitutes an offence.” Interestingly, Justice Swaminathan highlighted that there is more to this situation than the question of bail. He noted that online surveillance under Section 43 of the POCSO is in no doubt necessary (and not a violation of free speech) to deter potential offenders but unfortunately is not sufficient. He observed, “Therefore, it is only through moral education, there can be a way out. It is only the Bharatiya culture that can act as a bulwark. The menace of child pornography can be tackled only if all of us inculcate the right values.” Read the Order here.
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