Case: Just Rights for Children Alliance v. S. Harish

2024, SC

Bench: Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala

Introduction:

The Supreme Court of India, in the case of Just Rights for Children Alliance v. S. Harish, addressed a crucial issue regarding the possession, storage, and viewing of child pornography (referred to as Child Sexual Exploitative and Abuse Material - CSEAM) under Indian law. The case is significant as it resolves a legal split among High Courts and clarifies the scope of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and the Information Technology Act, 2000 (IT Act) in relation to child pornography.

Facts of the Case:

• On 29 January 2020, following a Cyber Tip line report by the National Crime Records Bureau, the Tamil Nadu police registered an FIR against S. Harish for possessing child pornography.

• During the investigation, child pornography videos were found on Harish’s phone, which had been recorded in Tamil Nadu. These videos involved children who had been sexually exploited and were reported as missing.

• In 2023, Harish was charged under Section 15(1) of the POCSO Act and Section 67B of the IT Act. Harish approached the Madras High Court, seeking to quash the proceedings against him.

• The Madras High Court, in January 2024, quashed the criminal proceedings, ruling that merely possessing or watching child pornography did not amount to an offense under the POCSO Act or IT Act.

• The Just Rights for Children Alliance filed an appeal, arguing that the Madras High Court’s ruling could lead to a dangerous precedent by suggesting that downloading and possessing child pornography was not illegal.

Issues:

1. Whether the mere possession or viewing of child pornography (CSEAM) constitutes an offense under Section 15 of the POCSO Act and Section 67B of the IT Act.

2. Whether the intent to distribute or commercially use child pornography is necessary to prosecute under the POCSO Act and IT Act.

3. The appropriateness of using the term “child pornography” and the need for its replacement with more accurate terminology.

4. The role and obligations of social media intermediaries in preventing the dissemination of child pornography.

Observations:

1. Clarification of Section 15 of POCSO Act:

• • The Court clarified that Section 15 of the POCSO Act consists of three distinct offenses, each addressing different aspects of CSEAM: possession, storage, and distribution. The mere possession or storage of such material, without deletion or reporting, is an offense under Section 15(1).
• • Section 15(2) and Section 15(3) focus on the transmission and commercial distribution of such material, but Section 15(1) addresses basic possession.

2. Section 67B of the IT Act:

• • The Court observed that Section 67B of the IT Act is a comprehensive provision that not only penalizes the transmission of child pornography but also includes possession and consumption of such material.

3. Culpable Mental State:

• • The Court noted that under Section 30 of the POCSO Act, a presumption of culpable mental state applies in cases involving child pornography, placing the burden of proof on the accused to demonstrate innocence once possession is established.

4. Terminology Change:

• • Justice Pardiwala suggested replacing the term “child pornography” with “child sexual exploitative and abuse material (CSEAM)”, to reflect the true nature of the crime, which involves non-consensual exploitation, as opposed to voluntary participation implied by the term "pornography".
• •

5. Social Media Intermediaries:

• • The Court emphasized the role of social media platforms and intermediaries in the dissemination of child pornography. The Court clarified that Section 79 of the IT Act does not provide safe harbor for intermediaries when it comes to child pornography, and they must take immediate action to remove such content once informed by the authorities.

Implication:

1. Legal Clarity and Strengthening of Laws:

• • The ruling strengthens the legal framework by making it clear that possession and viewing of child pornography are punishable offenses, addressing a legal gap previously exploited by offenders.

2. Protection of Children:

• • The decision reinforces the importance of protecting children from sexual exploitation and abuse, ensuring that offenders who engage in activities such as possession or consumption of child pornography face legal consequences.

3. Accountability of Social Media Platforms:

• • The ruling places greater responsibility on social media platforms and intermediaries, urging them to take more proactive steps in identifying, reporting, and removing child pornography, and ensuring the protection of children online.

4. Restoration of Criminal Proceedings:

• • The Court restored the criminal proceedings against S. Harish, and his case will proceed to trial in a fast-track court in Tamil Nadu, ensuring that the legal process remains effective and timely in dealing with such cases.