Introduction
Name of the case: Just Right for Children Alliance & Anr v. Harish and Ors.
Citations: 2024 INSC 716
Court: Supreme Court of India
Decided on: 23 September, 2024
Bench: Chief Justice D.Y. Chandrachud, J. J.B. Pardiwala
Facts
The criminal proceeding originated from incidents involving the accused allegedly engaging in viewing Child Exploitation and Sexual Abuse Material (“CESAM”). During the police investigation, the accused stored CESAM on his mobile device which resulted in the investigation into alleged violations of Sections 67B of the Information Technology Act and Section 14(1) of the Protection of Children from Sexual Offences Act. The respondent was primarily charged with Section 15(1) of the POCSO Act – which criminalizes the downloading or possession of CESAM if there is an intention to distribute or pass it on. The Madras High Court annulled the criminal proceeding to the extent that merely viewing or storing CESAM without distributing or publishing it was not deemed an offence. The appellants (various non-governmental organisations) sought to overturn the decision in the Supreme Court.
Issue Raised
Major Legal Issues
Whether it is an offense to view CESAM under Section 15 of the POCSO Act and Section 67B of the IT Act.
Whether the presumption of culpa mentale in Section 30 of the POCSO Act can be made in quashing petitions
Contentions
FROM THE PETITIONER
Viewing CESAM as an Offense:
CESAM material means any material, which is child sexual exploitation and abuse material, as defined under section 2 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) and Section 2(1)(w) of the Information Technology Act, 2000 (the IT Act).
They also stated that the 2019 Amendment to the POCSO Act had widened the ambit of Section 15 of the Act to include possession and viewing of CESAM without transmission or publication.
Constructive Possession:
The petitioners argued that by viewing CESAM one constructively possesses the material, even though it is not physically stored, because one exercises control over the material.
Presumption of Malicious Intent:
According to them, the POCSO Act Section 30 establishes a rebuttable presumption of malicious intent, which should be invoked in the instant case to make the respondent culpable.
Public Interest and Child Protection:
CESAM was argued to be socially harmful and the laws should be strictly enforced to prevent it from being consumed or spread within the society.
Role of Intermediaries:
If intermediaries hosting CESAM do not remove and report such content, they have to be held accountable under Section 79 of the IT Act, they pointed out.
BY THE RESPONDENT
No Transmission or Publication:
The respondent submitted that mere watching or downloading of CESAM without transmission or publication is not an offense under Section 15 of the POCSO Act or Section 67B of the IT Act.
Lack of Malicious Intent:
They submitted that there was no material to establish that the respondent had any intention to share or distribute the material, which is an essential ingredient of the offense.
Ignorance of the Law:
The accused protested innocence of the provisions of law criminalizing possession or viewing of CESAM and contended that this should lessen their culpability.
Quashing of Proceedings:
They upheld that the High Court was justified in quashing the criminal proceedings, since the basic facts necessary to trigger the statutory presumption of malicious intent were not proven.
Judgement/ Decision
The Supreme Court overruled the High Court’s ruling and reinstated the criminal proceedings against the respondent. The rationale of the Court can be outlined as follows:
- Extent of Section 15 of the POCSO Act
The Court ruled that Section 15(1) criminalizes the possession or storage of CESAM, even without transmission, if there is a purpose to share it. The doctrine of “inchoate crimes” was invoked to underscore that preparatory conduct, including possession with intent, is criminalized.
The Court explained that not deleting, destroying, or reporting CESAM also amounts to an offense under Section 15(1).
- Regarding as Possession
The Court held that looking at CESAM constitutes constructive possession, as it entails control over the material, albeit not physical storage.
The 2019 Amendment to the POCSO Act broadened the ambit of Section 15 to cover possession without commercial intent, evidencing the legislative desire to discourage CESAM consumption.
- Presumption of Culpable Mental State
Section 30 of the POCSO Act provides a rebuttable presumption of malicious intent, which assists the prosecution in situations where direct evidence is limited.
The Court held that the presumption could be raised in quashing petitions, subject to establishing foundational facts.
- Interpretation of Section 67B of the IT Act
The Court clarified that Section 67B encompasses a broad spectrum of activities such as creation, possession, and consumption of CESAM, and online exploitation of children.
- Role of Intermediaries
The Court explained that intermediaries cannot invoke immunity under Section 79 of the IT Act unless they delete and report CESAM to the authorities.
- Terminology and Legislative Recommendations
The Court suggested substituting the word “child pornography” with “child sexual exploitation and abuse material” in order to reflect the seriousness of the offense better.
It also proposed establishing an online portal for reporting CESAM
Analysis and Commentary
- Judicial Activism and Legislative Gaps
The decision is a case of judicial activism in filling legislative gaps. The Court has stretched the scope of Section 15 by interpreting “possession” to encompass constructive possession to curb CESAM consumption effectively. Suggesting that the POCSO Act and IT Act be amended demonstrates the judiciary’s assertive attitude to preventing child exploitation.
- Balancing Rights and Responsibilities
The judgment reconciles individual and collective rights. Though the assumption of culpable state of mind under Section 30 benefits the prosecution, it is capable of being rebutted so that the accused has a chance to set up his defence.
- Global Perspectives
The Court’s use of U.S. jurisprudence serves to underscore the significance of comparative legal analysis. In incorporating the notion of constructive possession, the judgment brings Indian law into conformity with global norms, providing a strong response to CESAM-related offenses.
- Challenges in Implementation
Inasmuch as it was progressive in its approach, the ruling poses practical issues. For example, assessing “intention to share” where only viewing or involuntary possession may be involved can be challenging. Furthermore, the success of the proposed online portal is subject to implementation and awareness among the populace.
Conclusion
The ruling in Just Rights for Children Alliance v. S. Harish is a milestone achievement in the battle against child exploitation. Through its clarification of the scope of Sections 15 and 30 of the POCSO Act and Section 67B of the IT Act, the Supreme Court has strengthened the legal framework for safeguarding children in the digital era. Its success, though, hinges on its effective enforcement as well as the legislature’s action on the recommendations of the Court.
Rakshita Shubhangi
(Asian Law College, Noida)