The Supreme Court has issued notice to the Centre on a petition by a coalition of NGOs challenging a Kerala High Court order in which it stated that merely storage and possession of child pornography material on the phone is not an offence under the Pocso or Information Technology Act.

A bench of Chief Justice of India D.Y. Chandrachud, Justice J.B. Pardiwala and Justice Manoj Misra referred to a similar Madras High Court order which had held that watching child pornography in itself does not amount to a criminal offence.

Citing the order, the CJI said the reserved judgment in the Madras High Court order could also impact this case and asked the petitioner to wait for the decision.

In June, Kerala High Court had discharged 27-year-old Sebin Thomas who had downloaded, stored and possessed child pornography materials on his mobile phone. It held that mere automatic or accidental downloading of children engaged in sexually explicit acts or conduct is not an offence under either the Protection of Children from Sexual Offences (Pocso) Act or the IT Act.

Just Rights for Children Alliance, a coalition of over 120 NGOs working in India against sexual exploitation, trafficking and marriage of children, had said in its petition: “The impugned order, extensively covered in the media, gave the impression that individuals who download and possess child pornography will not face prosecution. This will encourage child pornography and would act against the well-being of children.”

Appearing for the petitioner, senior advocate H.S. Phoolka informed the bench that the Kerala police had found that several local children in the age group of 8-10 years and 15-16 years were involved in the offending sexual videos.

The accused was arrested during Operation P-Hunt, a special drive by the Kerala Police CCSE (Countering Child Sexual Exploitation) team, functioning under Cyberdome, to curb crime against children. The petitioner alleged a year-wise increase in the percentage in child pornography cases from 2018 to 2022, which showed a steep rise over the four years, as per the National Crime Records Bureau data.