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Case comment – JUST RIGHTS FOR CHILDREN ALLIANCE v. S. HARISH

Case Comment, Publications

JUST RIGHTS FOR CHILDREN ALLIANCE v. S. HARISH

(2024) INSC 716, decided on 23 September 2024, Supreme Court of India

CASE Details –

CASE NAME – JUST RIGHT FOR CHILDREN ALLIANCE V. S.HARISH

COURT – SUPREME COURT OF INDIA

BENCH- 2 BENCH JUDGES; JUSTICE J.B. PARDIWALA, D.Y. CHANDRACHUD

CASE TYPE – CRIMINAL APPELLATE JURISDICTION, CRIMINAL APPEAL NOS. 2161-2162 OF 2024

DECIDED ON – 23RD SEPTEMBER 2024

PARTIES-

APPELLANT – JUST RIGHT FOR CHILDREN ALLIANCE & ANR.

RESPONDENT – S. HARISH & ORS.

INTRODUCTION-

Indian law is under intense pressure as cybercrimes and internet abuse of children continues to expand at a very high rate. The Supreme Court has addressed a very important question on whether the mere accessing or retention of information of child sexual exploitation and abuse material (CSEAM) without any sharing of the material, is a punishable offence as per Section 15 of the POCSO Act, 2012, and Section 67B of the Information Technology Act 2000 in the case of Just Rights for Children Alliance & Another v. S. Harish and others, Criminal Appeal Nos. 2161-2162 of 2024. This issue reached the Court when the Madras High Court had quashed the criminal proceedings finding that mere passive possession did not attract any criminal liability under the then existing law. That decision was revoked by the Supreme Court, and the meaning of legal responsibility under both statutes was expanded. It has emphasized the gravity of CSEAM, and has recommended that his language be amended in order to shift to the use of the more child-sensitive and victim-sensitive interpretation of the law, replacing the long-disused term, child pornography. The case is a milestone in the way children are legally defended in the age of the Internet.

FACTS OF THE CASE

The case arises from a criminal appeal before the Supreme Court of India, contesting a Madras High Court decision that quashed the prosecution against Mr. S. Harish for offences related to child sexual exploitative and abuse material (CSEAM). The appeal was filed by Just Rights for Children Alliance, an NGO advocating child rights and online safety.

  • Origin of the Case: Cyber Tipline Alert

On January 29, 2020, a Cyber Tipline Report was generated by the U.S.-based National Center for Missing and Exploited Children (NCMEC), which collaborates globally to detect online child abuse. The alert, passed through India’s NCRB, identified a mobile device linked to Mr. Harish that had accessed suspected CSEAM. The information was relayed to the Tamil Nadu Cyber Crime Police and forwarded to the All Women Police Station, Ambattur. 

  • FIR and Legal Provisions Invoked

An FIR No. 3/2020 was lodged on the same day under Section 67B of the Information Technology Act, 2000 (relating to child pornography) and Section 14(1) of the POCSO Act, 2012 (pertaining to use of children for pornographic purposes). 

  • Forensic Findings and Charges

The police seized Harish’s mobile phone and a forensic analysis revealed 108 pornographic videos, two of which involved children, qualifying as CSEAM under the POCSO Act.  Accordingly, a charge sheet was filed on September 19, 2023, and the charge was amended from Section 14(1) to Section 15 of the POCSO Act, which criminalizes possession, storage, or viewing of CSEAM even without active transmission.

  • Petition under Section 482 CrPC

Mr. Harish sought relief from the Madras High Court under Section 482 CrPC, asserting that passive possession or viewing does not amount to an offence under Section 15 POCSO or Section 67B IT Act, which he claimed require active dissemination.  The High Court agreed and quashed the charge sheet, holding that the provisions did not penalize mere possession or passive consumption. 

  • Supreme Court Appeal by Just Rights for Children Allianc

The NGO appealed to the Supreme Court, challenging the High Court’s limited interpretation. They argued that even passive possession of CSEAM constitutes a criminal offence under the POCSO and IT Acts, as it fosters demand for such content and indirectly perpetuates child exploitation

. 

ISSUES RAISED

The appeal initiated by Just Rights for Children Alliance led to several pivotal legal questions concerning the interpretation and application of laws governing child sexual abuse material in India. The Supreme Court had to consider the following key issues:

  1. Whether the act of simply possessing, storing, or viewing child sexual exploitative and abuse material (CSEAM)—in the absence of any act of sharing or transmitting—qualifies as a punishable offence under Section 15 of the POCSO Act and Section 67B of the IT Act?
    This issue required the Court to determine if passive receipt or retention of such content, without further dissemination, is criminally actionable.
  2. Whether establishing a culpable mental state (mens rea) is necessary to secure a conviction under the said provisions, or whether they entail strict liability?
    The defence argued the absence of intent or awareness, placing the burden on the Court to decide if these offences require proof of a guilty mind or function on a no-fault basis.
  3. Whether the Madras High Court acted correctly in using its powers under Section 482 CrPC to quash the charge sheet on grounds that passive possession of CSEAM is not an offence under existing law?
    This issue raised concerns about judicial overreach at the preliminary stage of proceedings, particularly in matters involving child protection statutes.
  4. Whether the continued use of the term “child pornography” in Indian legal parlance should be replaced with “child sexual exploitative and abuse material (CSEAM)” to more accurately reflect the nature of the offence and align with international child rights frameworks?
    This question addressed the importance of language in legal settings, urging a shift toward terminology that centres on the victim and the exploitative nature of the content, rather than normalizing it through outdated or misleading labels.

CONTENTIONS

The case reflected a clash between the need to protect children in digital spaces and safeguarding constitutional rights of the accused. Below are the contentions from both parties:

  1. Appellant – Just Rights for Children Alliance
  • Punishability of Possession: Argued that both Section 15 of the POCSO Act and Section 67B of the IT Act cover mere possession and viewing of CSEAM, regardless of sharing or distribution.
  • Legislative Intent: Highlighted that the aim of these provisions is to penalize all interactions with exploitative material, including passive consumption, as clarified by the explanation to Section 15 POCSO.
  • Role in Exploitation Cycle: Claimed that even viewing such content sustains the demand, which fuels production and continued abuse of children.
  • Criticism of High Court’s Decision: Contended that quashing the charge sheet amounted to a premature assessment of evidence, bypassing trial procedures and misusing Section 482 CrPC.
  • Prima Facie Evidence Exists: Emphasized that the forensic recovery of CSEAM from the respondent’s device was enough to proceed to trial.
  • Language Reform: Urged the Court to adopt the term “Child Sexual Exploitative and Abuse Material (CSEAM)” instead of “child pornography”, which they argued minimizes the seriousness of the offence.
  • Victim-Centric Approach: Suggested that trauma-informed and accurate legal terminology is essential to reflect the abusive and exploitative nature of the crime.
  1. Respondent – S. Harish
  • Literal Interpretation of Law: Asserted that Section 15 POCSO and Section 67B IT Act require some active engagement like distribution, publishing, or transmission, which was absent in his case.
  • No Active Use of Child: Claimed that mere storage did not involve him using a child for pornographic purposes, as there was no creation or circulation of content.
  • No Mens Rea Proven: Argued that intent or knowledge was not established through the forensic report, and passive possession doesn’t show a guilty mind.
  • Due Process Concerns: Raised constitutional objections about fair trial rights, emphasizing the danger of convicting without clear intent or overt action.
  • Support for High Court Ruling: Supported the High Court’s use of Section 482 CrPC to prevent unnecessary prosecution when the legal elements of the offence were not made out.
  • No Prima Facie Case: Maintained that the material on record did not justify prosecution under either statute and that continuing proceedings would amount to harassment.

RATIONALE

The Hon’ble Supreme Court reversed the Madras High Court’s ruling and affirmed that the mere possession, viewing, or browsing of CSEAM amounts to an offence under both Section 15 of the POCSO Act and Section 67B of the IT Act. 

  • The Court criticized the High Court’s narrow view, holding that the law clearly penalizes not only distribution, but also passive involvement—including storing or watching exploitative material involving children. 
  • It held that passive consumption is far from innocuous; such behavior sustains the demand for abusive content and contributes to ongoing child exploitation. Criminalizing viewing and possession serves to disrupt the cycle of abuse. 
  • Section 15 of the POCSO Act, supported by its Explanation, makes it explicit that possession, downloading, browsing, or viewing CSEAM is punishable—even when there is no evidence of transmission or publication. 
  • The Court also clarified that under Section 30 of the POCSO Act, a presumption of mens rea applies. Once possession is established, the burden shifts to the accused to prove absence of knowledge or intent, reinforcing the statute’s child-protective objective. 
  • Additionally, the Court endorsed the replacement of the term “child pornography” with “child sexual exploitative and abuse material (CSEAM)” in legal and policy frameworks to reflect the true nature of the crime. 
  • It reasoned that the word “pornography” dilutes the severity of the offence and misrepresents the non-consensual and violent nature of such content involving children. The term “CSEAM” is more aligned with trauma-informed, victim-centric language and international standards. 

To support this legal reasoning, the Court relied on key judicial precedents

  1. State of Haryana v. Bhajan Lal, 1992 Supp (1) SCC 335
  • The Supreme Court laid down clear limits for High Court interference under Section 482 CrPC, stating that it should only be exercised when a criminal complaint is evidently frivolous or legally flawed.
  • The Court stressed that such intervention should not occur in cases where the allegations require full investigation or trial.
  • In the S. Harish matter, this principle was cited to show that the Madras High Court erred by stopping prosecution despite the presence of digital child abuse content.
  • The apex court held that the complaint warranted trial and quashing it at an early stage undermined the protective intent of the law.
  1. State of Andhra Pradesh v. Golconda Linga Swamy, (2004) 6 SCC 522
  • The Court ruled that, while considering framing of charges, courts must avoid assessing the merits or sufficiency of evidence.
  • It clarified that if material exists that supports the accusation at face value, the case must proceed to trial.
  • In S. Harish, the Supreme Court held that the High Court wrongly went into the depth of evidence at a preliminary stage, which was beyond its scope.
  • The recovery of sensitive videos, it said, met the threshold for trial under both the POCSO and IT Acts.
  1. Amar v. State of Madhya Pradesh, (2017) 8 SCC 570
  • This case confirmed that forensic recovery of digital content, such as videos or images, is legally admissible and sufficient to justify criminal charges.
  • It emphasized that absence of direct witnesses or a complainant does not weaken the prosecution if incriminating material is retrieved lawfully.
  • Applying this reasoning, the Court held that in S. Harish, the presence of two child abuse videos on the respondent’s phone was enough to frame charges.
  • The Court reaffirmed that holding such material contributes to ongoing abuse and must be treated as a punishable offence.

DEFECTS OF LAW

Despite the Supreme Court’s well-reasoned interpretation of Sections 15 and 30 of the POCSO Act and Section 67B of the IT Act, the case highlighted several structural and legislative gaps that contributed to the confusion in the High Court’s initial ruling.

1. Undefined Scope of ‘Possession’

  • Section 15 of the POCSO Act criminalizes possession and viewing of CSEAM, but offers no guidance on how long or in what manner such material must be held to constitute an offence.
  • This vagueness raises legal concerns around accidental downloads, cached data, or brief exposure, potentially leading to overreach in prosecution. 

2. Misalignment Between POCSO and IT Act

  • The two statutes differ in language and focus: POCSO now covers passive consumption, while Section 67B of the IT Act emphasizes publication and transmission.
  • This inconsistency causes confusion in interpretation and enforcement, as observed in the High Court’s decision to quash charges. 

3. Inadequate Procedural Safeguards on Quashing Powers

  • The case revealed a procedural gap—there are no specific safeguards to restrict High Courts from invoking Section 482 CrPC prematurely in sensitive child protection matters.
  • The Madras High Court’s early dismissal of charges highlights the risk of judicial overreach in the absence of clearer legal boundaries. 

4. Lack of Statutory Adoption of Victim-Centric Terminology

  • Though terms like “child pornography” have been criticized internationally, Indian laws still rely on this outdated phrase.
  • The absence of a legal mandate to use “CSEAM” prevents consistent, trauma-informed language across investigations and court processes. 

5. Gaps in Forensic Infrastructure and Protocols

  • While the conviction relied on digital evidence, India lacks uniform forensic standards for handling CSEAM cases.
  • This makes prosecutions vulnerable to challenges around evidence reliability, privacy concerns, and admissibility, underlining the need for clear statutory or procedural reforms. 

INFERENCE

  • This case marks a significant judicial development in expanding the scope of child protection under Indian criminal law. The Supreme Court’s interpretation reinforces the idea that child sexual exploitation is not limited to active creators or distributors of abusive content, but also includes passive consumers who fuel the demand. 
  • By reversing the Madras High Court’s decision, the Supreme Court has clarified that even possession, browsing, or viewing of CSEAM constitutes an offence, thereby closing a loophole that could have allowed offenders to escape liability under a narrow reading of the law.  The judgment also signals the need for a harm-based approach over a purely intent-based interpretation in child abuse cases, recognizing that every instance of CSEAM possession perpetuates systemic harm to child victims globally. 
  • Moreover, the Court’s emphasis on replacing “child pornography” with “child sexual exploitative and abuse material (CSEAM)” reflects a victim-centric legal philosophy that seeks to restore the dignity of survivors through appropriate legal language. 
  • However, this case also underscores the need for legislative clarity and consistency across statutes such as POCSO and the IT Act, as well as procedural reform to regulate digital forensic practices and the use of judicial discretion under Section 482 CrPC.

Conclusion

The Supreme Court’s ruling in Just Rights for Children Alliance v. S. Harish marks a vital development in protecting children from online sexual abuse. By interpreting the POCSO Act and IT Act to include mere possession and viewing of CSEAM as punishable, the Court closed a serious legal gap. Recognizing that passive consumption fuels the exploitation cycle, the judgment reinforced that prima facie evidence is enough to proceed to trial. The Court also recommended replacing the term “child pornography” with “CSEAM” to reflect the true harm involved and align with victim-sensitive, international standards. This decision not only overturned a flawed High Court view but also laid down a clear precedent for future digital child protection cases—strengthening both prosecution and preventive frameworks in the cyber age.

PRAJWAL JETHANI 

KC LAW COLLEGE