Authored By: Nikitha K
SRM University
INTRODUCTION
Just Rights for Children Alliance v. S. Harish (2024 INSC 716) is a landmark case in the solution of the problem of child sexual exploitation in the context of the digital world, as far as the Indian judicial system is concerned. This Supreme Court order which arises out of a challenge to the decision of the Madras High Court which quashed a criminal proceedings against S. Harish on possession of material containing child sexual exploitation and abuse (CSEAM) raises very pertinent questions pertaining to the criminality of possession and viewing of such material under the provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Information Technology Act, 2000 (IT Act). The case presents a conflict between personal rights and the social need to protect children against sexual exploitation especially when it comes to the changing digital technology. Revoking the decision of the High court, the supreme court explains the limits of the sections of POCSO and IT Act of 15 and 67b, respectively, in support of child safety and precedent in dealing with digital crimes against CSEAM.
FACTS OF THE CASE:
The Cyber Tipline Report submitted to the National Crime Records Bureau (NCRB) on 29 January 2020 stated that S. Harish of Ambattur, Tamil Nadu had been downloading child sexual exploitative and abuse material (CSEAM) and viewing child sexual exploitative and abuse material (CSEAM) since a period of more than two years. After that, Tamil Nadu police filed an FIR against Harish on the basis of Section 67B of the Information Technology Act, 2000 (IT Act) and Section 14(1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). A forensic analysis done of the mobile phone of Harish revealed that there were child pornographic videos and they had been downloaded using websites. Harish was booked in 2023 under the POCSO Act and victims of CSA (Children) are facing the allegations of POCSO Act 15(1), POCSO Act 15(2), and IT Act 67B. Harish moved the Madras High Court through a quashing petition (Crl. O.P. No. 37/2024), with an application to get rid of the criminal proceedings. On January 11, 2024, the Madras High Court held the charges invalid, rejecting that possession or viewing child pornographic material privately was an offense under Sec.14(1) of the POCSO Act or Sec. 67B of the IT Act unless someone could prove that there was publication or transmission. But the High Court also stated that Section 14(1) had necessitated the use of a child by the accused in a pornographic manner, which was not proved. An NGO, the Just Rights for Children Alliance and another appellant in the Supreme Court moved Criminal Appeal Nos. 2161-2162 of 2024 to challenge the decision of the High Court on the ground that the order acted on a dangerous precedent and given a virtual signal that there was nothing wrong with possession and downloading child pornography content thus leading to more demand of the same.
ISSUES OF THE CASE:
- Does mere possession or viewing of child sexual exploitative and abuse material (CSEAM) constitute an offense under Section 15 of the POCSO Act and Section 67B of the IT Act?
- Is intent to distribute or commercially exploit child pornography necessary to prosecute under Section 15 of the POCSO Act and Section 67B of the IT Act?
- Can the statutory presumption of a culpable mental state under Section 30 of the POCSO Act be invoked in a quashing petition under Section 482 of the Code of Criminal Procedure, 1973 (CrPC)?
ARGUMENTS BY PETITIONER:
- The Madras High Court’s ruling misinterpreted Sections 15 of the POCSO Act and 67B of the IT Act, undermining the legislative intent to protect children from sexual exploitation. The petitioners argued that mere possession or viewing of CSEAM should be punishable, as it fuels demand for such material, endangering children.
- The High Court’s interpretation could lead to a public perception that downloading and possessing child pornography is legal, potentially encouraging such activities and harming society’s moral fabric.
- Section 15 of the POCSO Act does not require intent to distribute for an offense to be established under subsection (1), which explicitly penalizes storage or possession of child pornographic material if the accused fails to delete, destroy, or report it.
- Section 67B of the IT Act comprehensively covers electronic possession, viewing, or storage of CSEAM, and the High Court’s narrow interpretation defeated the purpose of combating child exploitation in the digital age.
- The statutory presumption under Section 30 of the POCSO Act should apply, placing the burden on the accused to prove the absence of a culpable mental state, which Harish failed to do.
ARGUMENTS BY RESPONDENT
- Harish contended that mere possession or viewing of child pornography, without evidence of distribution, transmission, or creation, does not constitute an offense under Section 14(1) of the POCSO Act or Section 67B of the IT Act.
- He argued that Section 14(1) of the POCSO Act requires the accused to have actively used a child for pornographic purposes, which was not applicable as he only downloaded and viewed the material.
- For Section 67B of the IT Act, Harish claimed that the provision applies only to publishing, transmitting, or creating child pornographic material, not to private possession or viewing.
- There was no intent to distribute or commercially exploit the material, and thus, the charges were unfounded.
- The statutory presumption of a culpable mental state under Section 30 of the POCSO Act should not apply in a quashing petition under Section 482 of the CrPC, as it is relevant only at the trial stage.
LEGAL PROVISIONS
- POCSO Act, 2012:
- Section 15: Penalizes storage or possession of child pornographic material. Subsection (1) addresses possession without deleting, destroying, or reporting; subsection (2) covers possession with intent to transmit or distribute; and subsection (3) pertains to possession for commercial purposes. The subsections are distinct, with varying degrees of culpable mens rea.
- Section 30: Establishes a presumption of a culpable mental state unless the accused proves otherwise, applicable once the prosecution establishes foundational facts.
- Section 14(1): Penalizes the use of a child for pornographic purposes.
- Information Technology Act, 2000:
- Section 67B: Penalizes publishing, transmitting, or electronically possessing child pornographic material, addressing various forms of electronic exploitation of children.
- Indian Penal Code, 1860:
- Section 292: Addresses obscene acts and materials, applicable only in public settings.
- Code of Criminal Procedure, 1973:
- Section 482: Grants High Courts the power to quash criminal proceedings to prevent abuse of process or secure justice.
JUDGEMENT:
On 23 September 2024, the Supreme Court bench of Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala, set aside the order of the Madras High Court and reinstated the case against S. Harish involving a criminal offence and the case was to be heard by a fast-track court in Tamil Nadu.
The important aspects of the judgment are as follows:
Explanation of Section 15 of the POCSO Act: According to the Court, the case of viewing, or merely possession of CSEAM, when the accused does not delete, destroy or report the material prima facie amounts to an offense under Section 15(1).
The subsections of Section 15 are different and, on the one hand, sub-section (1) has no need of intent to distribute, whereas sub-sections (2) and (3) have additional levels of culpability (intent to transmit or commercial exploitation, respectively).
Explication of Section 67 B of the IT Act: According to the court, Section 67B penalizes possession, viewing, or storage of CSEAM in a computerized medium, with or without intent to distribute, pervasively. The provision is an addition to the POCSO Act to fight with child exploitation in the online sphere.
The Statutory Presumption under Section 30: The presumption of culpable mental state will only be applicable at the trial level and cannot be applied during the proceedings of the quashing of the case under Section 482 of the CrPC.
To have a presumption under a certain premise, the prosecution must develop ground information first, including possession. Constructive Possession: The Court came up with the idea of constructive possession, the individuals were answerable even when they did not physically have CSEAM but they were storing it, so they were responsible when they knew about it.
Constructive Possession: The Court also created the term constructive possession, which holds individuals equally responsible of possessing CSEAM when they knowingly store or access CSEAM without physically possessing it.
Terminology: The Court proposed using the term child sexual exploitative and abuse material (CSEAM) to replace the term child pornography in judicial orders and proposed to amend the law that gives preference to this terminology to point out the seriousness of such crimes.
Four-Prong Test for Defense: A valid defense of ignorance of law requires (1) unawareness of the law, (2) a reasonable and legitimate right or claim arising from such ignorance, (3) bona fide belief in that right, and (4) the act being committed based on that belief. Harish failed to meet this test.
ANALYSIS
The case of Just Rights for Children Alliance v. S. Harish in the Supreme Court is not only an influential court case that enhances the legislative system of India by launching an attack on the practice of child sexual exploitation in the modern era of the internet. By overruling the decision made by Madras High Court, the Court made it clear that the possession or even viewing CSEAM is a punishable offense, filling in a very essential gap in the interpretation as the concerned child protection laws could not have been sabotaged. The differences in the subsections under Section 15 of the POCSO Act make sure that the penalties would be proportional to the level of culpability as subsection (1 ) implies strict liability in case of possession without requiring that the content of possession were intended to be distributed. This solution conforms to the goal of the Act aimed at discouraging any activity related to CSEAM since passive usage contributes to demand and allows causing damage to children. The fact that Section 67B of the IT Act offers a means of addressing the electronic offense has become relevant to the Court because of growing popularity of the digital platform. The creation of the concept of constructive possession widens the liability limit and so people cannot escape liability on the grounds that they did not exercise any physical control. The insistence on the replacement of the term of child pornography by the term CSEAM implies a movement in a more progressive direction, because the current terminology correlates with the global ones in terms of capturing the exploitive context of such material. The ruling, however, leaves a controversy as to whether strict liability or the rights of an individual will be favored. The onus of culpable mental state under Section 30 in trial is of use, but there could be a lot of burden on the accused to prove innocence which might flaunt the principle of fair trial. This contention is at least lowered by the level of petition to be quashed as indicated in the said note of the Court that this presumption is not applicable in quashing proceedings. Also, the proposal to amend the laws through an ordinance implies the lack of time in redesigning the laws and catching up with the changing digital crimes.
Nevertheless, the ruling leaves an argument on which is more likely followed strict liability or the right of an individual. The provision of culpable mental state under Section 30 in trial is helpful in this regard but the accused might need to go through a lot of trouble to prove innocence which might violate the principle of fair trial. This argument is in any case diminished by the degree of petition to be quashed as shown in the said note of the Court that such assumption is not relevant in quashing proceedings. In addition, the suggestion to have the laws amended in the form of an ordinance also indicates, they did not have time in the redesign of the laws, and keeping abreast the dynamic crimes in the virtual world.
CITATIONS:
- Just Rights for Children Alliance v. S. Harish, 2024 INSC 716
- Independent Thought v. Union of India, 2017 INSC 1030
- Nawabuddin v. State of Uttarakhand, 2022 INSC 162
