Child pornography can only be tackled by inculcating right values; public awareness or "Big Brother" watching not enough: Madras High Court

The menace of child pornography can only be tackled through moral education and if all are inculcated with the right values, observed the Madras High Court recently while granting anticipatory bail to a man accused of watching child pornography online..Justice GR Swaminathan added that while Section 43 of the Protection of Children from Sexual Offences (POCSO) Act, 2012 mandates that the government take measures to spread public awareness and even if there are online surveillance measures, this may not be enough to deter potential offenders.."... this alone may not be sufficient. That the “Big Brother” is watching us may not deter those who are determined to indulge in such acts of perversity. The system also may not be able to prosecute every offender. 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", he observed. .The Judge also pointed out that while watching pornography in private may be viewed as part of one's free expression and privacy, child pornography is a serious offence that is placed outside this circle of freedom.."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", the order stated. .In the course of the order, the Court further acknowledged that online surveillance is unavoidable in the digital realm in today's times. ."It is obvious that the moment one steps into digital space, one comes under the surveillance either of the State or those manning the social networking sites. If one is zealous about privacy, the only option is to stay outside such networks. Of course, in the current world, it is not a viable option", Justice Swaminathan observed. .Before parting with the matter, the Judge also referred to the writings of Tamil writer Nanjil Naadan, who has written, "'... the pipe is sweet, the lute is sweet,' say those who have not heard the prattle of their own children.”."According to him, the expression 'children' need not be confined to one's own children. It should encompass all children. He emphatically states that we should be compassionate towards any child. We should ensure that no child is sexually exploited. The writer utters several such noble sentiments ... I only wish the petitioner who ironically has been named as 'Infant' reads the above essay and imbibes the sentiments expressed therein", he remarked..The case before the Court involved allegations that the petitioner had browsed, downloaded and transmitted child pornographic material through his e-mail and Facebook account on June 27, 2020. .The information regarding the same was passed to the authorities via a tipline report from the NGO, National Center for Missing and Exploited Children (NCMEC), USA as part of an MoU between the NCMEC and the National Crime Records Bureau (NCRB). .The criminal case registered against the petitioner cited Section 15 (1) of the POCSO, 2012 and Section 67B of the Information Technology Act, 2000..The Court granted the petitioner anticipatory bail considering that:1. Even going by the prosecution's case, the alleged occurence took place almost a year back and appeared to be a one-off act rather than a commercial act;2. The custodial interrogation of the petitioner was not warranted since he has already handed over his mobile phone and SIM card to the authorities in line with the Court's earlier orders;3. Arrest should be avoided unless necessary during the prevailing pandemic times.."Of course, child pornography is a very serious issue warranting a firm approach. But I would make a distinction between a one time consumer and those who transmit or propagate or display or distribute in digital domain. In the case on hand, the petitioner is said to have shared the offending material with his friend through Facebook messenger. Since the petitioner has not come under adverse notice after the occurrence and since he had also extended his fullest co- operation with the investigation, I am inclined to grant him anticipatory bail", the Court added. .Advocate Venkateshwaran R appeared for the petitioner. Government advocate (criminal side) T Senthilkumar appeared for the State. .[Read Order]