Legal facts on transmitting, viewing and reporting online child pornography

Quote: Under Section 67B of the Information Technology Act, 2000, not only uploading or transmitting child pornography is prohibited but browsing (viewing) the same is also a punishable offence. If anyone is found to be in possession of any material that amounts to child  pornography, that person can be prosecuted under Section 15 of the Protection of Children from Sexual Offences Act, 2012

Advice - Rights and Laws, Sep '19
Kaushik Gupta explains the law on online child pornography

Reader queries

Is it a crime to watch pornography on the Internet in India? What if it involves only adults? If it involves children, I know it’s abusive, but can one report the website anywhere?
XYZ, Kolkata

Watching of adult pornography on the Internet in India is not, per se, illegal, provided one is watching it within the four corners of one’s private space and not in a public place that’s accessible by others, or where it can come to the notice of the public at large.

It has been observed by the Honourable Supreme Court of India in the case of Kamlesh Vaswani Vs. Union of India and Others that a person can’t be prosecuted for watching pornography if they’re doing so in their rooms. In the landmark judgement of Justice K. S. Puttaswamy and Another Vs. Union Of India and Others (commonly known as the privacy judgment), it’s been held that the right to privacy is a part of the Fundamental Rights under Article 21 of the Constitution of India. Hence, viewing adult pornogrpahy is not a crime in India if done in private.

However, under the Indian law, uploading or sharing of any obscene material is punishable. Sections 67 and 67A of the Information Technology Act, 2000 make such an act a punishable offence. Under the law, ‘sharing’ will amount to ‘transmitting’ and hence sharing of any material that can be deemed to be obscene over any electronic platform, including WhatsApp, Twitter, Messenger or other such digital media is a punishable offence.

The law is quite different when it comes to child pornography. Under the Indian law, anyone under the age of 18 years will be held to be a child. Under Section 67B of the Information Technology Act, 2000, not only uploading or transmitting child pornography is prohibited but browsing (viewing) the same is also a punishable offence. If anyone is found to be in possession of any material that amounts to child  pornography, that person can be prosecuted under Section 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

Section 21 of POCSO makes it mandatory (failure inviting penal provision) to report an offence under the Act. But the procedure and manner of reporting aren’t very clearly stated in the Act. In June 2018, the government launched a centralized online portal and a helpline number 155260 to receive complaints pertaining to child pornography to facilitate the reporting of any form of child pornographic material.

Unfortunately, merely penalizing the abusers never, in the history of criminal justice system, has prevented the commission of crime. What we need more than punishment is prevention. There’s a need to initiate a dialogue on the issue of sexuality in general, child sexuality, violence and understanding of consent, all of which are lacking in our system.

Author Photo

Kaushik Gupta

Kaushik Gupta is a lawyer by profession, a photographer by passion, and happy to answer your queries on legal matters around gender and sexuality. Write in your queries to vartablog@gmail.com, and they will be answered with due respect to confidentiality.

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