- Judgement Cause Title: Just Rights for Children Alliance & Anr. v. S. Harish & Ors.
- Case Number: Criminal Appeal Nos. 2161-2162 of 2024
- Judgement Date: September 23, 2024
- Court: Supreme Court of India
- Quorum: Dr. Dhananjaya Y. Chandrachud (CJI), J.B. Pardiwala, J.
- Author: J.B. Pardiwala, J.
- Citation: [2024] 10 S.C.R. 154 : 2024 INSC 716
- Legal Provisions Involved:
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- Protection of Children from Sexual Offences Act, 2012: Sections 15, 30
- Information Technology Act, 2000: Section 67B
- Judgments overruled by the Case: None
- Case is Related to which Law Subjects: Criminal Law, Cyber Law, Child Rights Law. 1
FACTS OF THE CASE:
The case began when a child rights organization, the Just Rights for Children Alliance, filed a complaint with the police after identifying Harish’s involvement in accessing online material that was categorized as CSEAM. This complaint was based on evidence gathered from online sources, indicating that Harish had accessed several websites hosting such material. 2
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Initial Investigation:
Upon investigation, law enforcement officials found that Harish had visited websites known to host CSEAM(child sexual exploitative and abuse material). He had viewed several explicit materials involving minors, but he had not uploaded, stored, or distributed any such content. His activities were limited to viewing these materials on his personal device, which led to the prosecution invoking provisions under the Protection of Children from Sexual Offences Act and the Information Technology Act, which is under Section 14 (use of a child for pornographic purposes) and Section 67B (punishment for publishing, sending, or viewing CSEAM), respectively.
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Legal proceedings before the Special Court:
Harish was initially convicted in the Special Court for violating Section 14 of the POCSO Act, which criminalizes the use of children for pornography. This section largely focuses on the creation, possession, and dissemination of child pornography. However, the case took a turn when it was asserted that the material was just seen and not distributed or stored, implying that there was no intention to produce or distribute the material.
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Appeal to the Madras High Court:
The case was appealed to the Madras High Court, where it was argued that the POCSO Act and the IT Act did not consider merely viewing CSEAM to be a crime. The defense contended that under the current legislative framework, which was first created to address the creation and dissemination of such content, Harish’s activities did not constitute a crime because there was neither transmission nor distribution of the material. 3
In support of this interpretation, the Madras High Court reversed the judgment, ruling that merely reading CSEAM without taking any further action—such as transmitting or storing it—did not satisfy the legal requirements for criminal culpability. The High Court’s ruling indicated that the law needed to be more precise in handling situations like these, where the legislative restrictions were insufficient to address the possible harm that could result from simply having access to CSEAM. 4
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Appeal to the Supreme Court:
Following the Madras High Court’s judgment, the Just Rights for Children Alliance filed an appeal with the Supreme Court, claiming that the High Court’s decision was an incorrect reading of the law. The appeal argued that the legislation should be read broadly to encompass online viewing of CSEAM as a serious crime, regardless of transmission or storage. 5
The primary concern was that viewing such material, even if not distributed, still contributes to the demand for CSEAM, perpetuating the cycle of exploitation and abuse of children. Additionally, the organization highlighted the fact that such material could contribute to the psychological harm of children depicted in the material, as well as further normalize the exploitation of children in society. 6
ISSUES RAISED:
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Interpretation of Section 15 of the POCSO Act:
Section 15 of the POCSO Act governs the penalties for storing or having child pornographic material. The main question here is whether possession alone, without intent to transmit, constitutes an infraction. The clause makes it illegal to possess material with the aim to utilize it for sexually exploitative reasons. Possession alone may not result in liability unless it is accompanied by an intent to transmit or use for criminal purposes. Courts may evaluate whether the accused was aware of the content, as well as any circumstances indicating exploitation or distribution. 7
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Interpretation of Section 67B of the IT Act:
Online publication, transmission, and surfing of child pornographic content are punishable under Section 67B of the Information Technology Act. Simply having such content without transmitting or disseminating it may not automatically fall under this clause because it specifically refers to transmission or publication. Nonetheless, certain legal interpretations may concentrate on the more expansive definition of “browsing,” which may suggest possible responsibility in the event that there is proof of persistent or active searching for such content, even in the absence of transmission. 8
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Differences Among Subsections of Section 15 of the POCSO Act:
The use of child pornographic material for injury or sexual exploitation is the main focus of Section 15(1). This calls for purpose.
- Section 15(2):
This section focuses on having such content for distribution or commercial use, which also suggests intent.
- Section 15(3):
If the person willingly removes or destroys the content after learning about its nature, a lighter penalty may be imposed. This suggests a certain amount of leeway for those who can expeditiously remove the content in good faith. 9
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Concept of Constructive Possession:
A legal circumstance known as “constructive possession” occurs when someone has control or dominion over illicit content even though they do not physically hold it. If someone can access and control the child pornographic content (for example, by bookmarking it or using it often), then merely viewing it online without downloading it may nevertheless expose them to liability under constructive possession. Courts may consider how much the person interacted with the material and if they meant to see or save it for illicit use. 10
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Determining Burden of Proof and Intention:
In cases involving child pornographic material, the prosecution often bears the burden of proving that the accused had the intent to store, utilize, or distribute such material for exploitative reasons. Courts will consider the surrounding circumstances, such as whether the accused was aware of the material, the frequency of access, any attempts to distribute it, and the context in which the content was discovered. While purpose is difficult to prove, a pattern of behavior or proof of exploitation could be very damaging to the accused. In some circumstances, good faith efforts to delete or report the information may also help to reduce liability. 11
CONTENTION:
Petitioner’s Arguments:
The petitioner, Just Rights for Children Alliance, contended that CSEAM storage and consumption were not passive behaviors and posed a serious risk to children’s safety. They maintained that watching such content generates demand, which fuels additional production and abuse, perpetuating an exploitative cycle. Furthermore, the petitioner stated that Section 15 of the POCSO Act, which penalizes the storage of child pornographic material, was frequently viewed as overly lenient and required a tougher interpretation to ensure that CSEAM consumers are suitably punished. They went on to claim that users of such material indirectly contribute to child abuse by encouraging the creation of more exploitative materials. The petitioner emphasized that the penalties for storing or eating CSEAM should reflect the magnitude of the offense and its impact on victims, particularly the violation of children’s dignity under Article 21 of the Constitution. 12
Respondent’s Arguments:
S. Harish, the defendant, stated that there is a clear separation between seeing CSEAM and engaging in direct acts of child sexual abuse. The defense argued that, while both actions are wrong, watching or keeping CSEAM should not be considered the horrific crime of sexually abusing a child. The respondent argued that Section 15 of the POCSO Act should be interpreted in a balanced manner, acknowledging that some people may consume such material without intending to exploit or harm children physically. They also claimed that persons detected with stored CSEAM frequently require psychological rehabilitation rather than harsh disciplinary action. According to the responder, viewing and saving such information does not always generate a desire to engage in child sexual abuse and should not be punished as severely. 13
RATIONALE:
The court expanded the interpretation of Section 15 of the POCSO Act, stating that simply possessing or failing to delete child pornography is unlawful, even if there was no intent to disseminate or distribute it. This mirrors global best practices in preventing child pornography, as it acknowledges that demand for such content feeds a vicious circle of child exploitation. The court’s attention on this section highlights the need of eliminating the storage and consumption of such materials, in line with international norms that penalize even passive involvement in child abuse. 14
Section 67B of the IT Act Takes a Strong Stand Against Digital Exploitation The verdict also addressed Section 67B of the IT Act, which criminalizes surfing, downloading, or watching child pornography, as well as its transfer or publication. This strategy ensures that India’s laws are in line with international efforts to eliminate child exploitation. Many international organizations, like Interpol and the United Nations, emphasize the need of pursuing both those who generate or distribute exploitative information and those who consume it. This decision puts India on the same road as countries spearheading the fight against digital child abuse, such as the United States and members of the European Union, which already have strict legislation against the possession of child pornography. 15
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Imputed Culpable Mental State: Maintaining Responsibility:
The use of Section 30 of the POCSO Act, which presumes a responsible mental state for those discovered in possession of child pornography, is one of the significant aspects of this ruling. This makes it more difficult for anyone involved in child pornography to avoid legal repercussions by shifting the burden of proof to the accused. In international initiatives to safeguard children against exploitation, such clauses are essential because they establish a stronger system of accountability, especially in situations when intent may be hard to establish. It guarantees that children’s protection stays the primary focus, which is consistent with the best practices embraced by different international legal systems. 16
Global commitments and Child Safety: The ruling is based on international treaties, confirming India’s commitments under the UNCRC and other global child protection frameworks. In today’s interconnected world, child pornography and exploitation frequently cross borders, necessitating international collaboration in combating these crimes. The Supreme Court’s ruling assures that India’s legal structure does not lag behind, but rather actively participates in global child protection efforts. 17
DEFECTS OF LAW:
The Madras High Court’s “atrocious” judgement
An FIR under the POCSO Act was filed on January 29, 2020, after the National Crime Records Bureau’s CyberTipline Report alerted the Tamil Nadu police that one S. Harish had been an ‘active consumer’ of child pornography. When the Forensic Science Laboratory examined Harish’s phone, it revealed two ‘child pornographic’ films. These recordings were shot locally in Tamil Nadu, and investigations indicated that they were youngsters who had gone missing and had been abused. A charge sheet was filed against Harish in September 2023 under Sections 15(1) of the POCSO Act and 67B of the IT Act. 18
After Harish petitioned the Madras High Court to dismiss the criminal charges, the court declared in January 2024 that “mere possession or storage” of ‘child pornography’ was not an offence under the POCSO Act. It further found that Harish was not convicted under Section 67B of the IT Act, which only criminalizes the “act of transmission, publication, or creation” of ‘child pornography’ rather than its “watching or downloading.” 19
On February 22, 2024, an NGO called ‘Just Rights for Children Alliance’ filed an appeal against the ruling. The petition argued that because the decision was widely covered by news outlets, it would create the impression among the ‘general public’ that “downloading and possessing child pornography is not an offence, and it would increase demand for child pornography and encourage people to involve innocent children in pornography.” On March 11, 2024, when hearing the appeal, the Chief commented that the High Court’s decision was “atrocious.” 20
INFERENCE:
On September 23, 2024, a Division Bench of Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala ruled that simply viewing, possessing, or storing material depicting minors engaging in sexual activity is an offense under the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’). The decision resolves a long-standing disagreement among High Courts over whether “mere storage” of ‘child pornography’ is a crime under Section 15 of the POCSO Act and Section 67B of the Information Technology Act, 2000 (‘IT Act’). Specifically, it rejected the Madras High Court’s ruling in S. Harish v Inspector of Police and Another (2024), which invalidated criminal proceedings against a POCSO accused after concluding that downloading or seeing ‘child pornography’ was not, per se, penalised under either the POCSO or IT Act. 21
According to Section 15(1) of the POCSO Act, “any person who stores or possesses” “child pornography” and “fails to delete, destroy, or report” it may be fined up to five thousand rupees, and up to ten thousand rupees for future offenses. 22