Just Rights for Children Alliance & Anr.
Vs.
S. Harish & Ors. (2024 INSC 716)
Author- Shivam Patel , B.A.LLB(Hons), CMP Degree College, University of Allahabad, Prayagraj
Abstract
The landmark case Just Rights for Children Alliances VS S. Harish was initially led by the Madras High court which give decision in favour of the respondent and equated him from all charges after which a criminal appeal NOS 2161-2162 of 2024 [arising out of special leave petition (CRL) NOS 3665-3666 of 2024 )] led before honourable Supreme Court of India by addressing issues relating to the interpretation and enforcement of POCSO Act,2012 and IT Act,2000 the appellation ( a coalition of five NGOs) aimed at combatting child trafficking and sexual exploitation by, challenging the quashing order of Madras High court the nullified criminal proceeding against the respondent for the offences under Section 15(1) of POCSO Act,2012 and Section 67 B of IT Act,2000.
The crux of the case is that whether mere possession or viewing of the child pornography constitutes a punishable offence or if it requires the active transmission or publication of the same.
Primary Details of Case
Case Number
Criminal Appeal Nos. 2161-2162 of 2024 (Arising out of SLP (Crl.) Nos. 3665-3666 of 2024)
Jurisdiction
Supreme Court
Petitioner
Just Rights for Children Alliance & Another
Respondent
S. Harish & Others
Key Dates
FIR Registered: January 29, 2020-
Forensic Report: August 22, 2020-
Charge Sheet Filed: September 19, 2023-
High Court Decision: January 11, 2024-
Supreme Court Judgment: September 23, 2024
Bench
Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala
Legal provision involved
Section 15(1), 15(2), 15(3) of POCSO Act,
Section 67B of IT Act, Section 30 of POCSO Act, Section 79 of IT Act
Brief facts
The All-Women’s Police Station Ambattur, Chennai, Tamil Nadu on 29/01/2020 received the letter from the Additional Deputy Commissioner of Police in which it was mention that as per the Cyber Tipline Report of the National Crime Record Bureau (NCRB). The respondent is active consumer of pornography and has allegedly downloaded phonographic content involving children in the mobile phone. In the view of this letter an FIR register against him on the same day (i.e.29/01/2020) at the All-Women’s Police Station Ambattur, Chennai, Tamil Nadu as Case No. 03 of 2020 for the offences punishable under Section 67B of Information and Technology act,2000(IT Act) and Section 14 sub-section 1 of Protection of Children from Sexual Offences Act,2012 (POCSO Act)
Issue
What is the scope of section 15 of the POCSO ACT 2012? In other word what is the underline distribution between sub-section 1, 2 and 3 of Section 15 of POCSO Act 2012?
Weather mere viewing, possessing, or storing of any child pornographic material is punishment under the POCSO Act,2012?
What is the scope of section 67 B of IT Act 2000?
What is the scope of section 30 of POCSO Act 2012? In other words what are the foundational fact necessary for invoking the statutory presumption of culpable mental state in the respect of section 15 of POCSO Act 2012?
Whether the statutory provision presumption contained in Section 30 of POCSO Act can be invoked only at the stage of trial by the special court alone established under the POCSO Act? In other words, whether it is permissible for the high court in quashing petition filed under Section 482 of CrPC to resort to the statutory presumption of culpable mental state contained in section 30 of the POCSO Act,2012
Argument of the parties
Appellant
The learner senior council appearing for the appellant argued that the interpretation of relevant provision of POCSO Act by the high court for the purpose of holding that mere storage or possession of any child pornographic material does not amount to an offence. Poses a significant threat to the wellbeing of a children and may result in proliferation of child pornography and threat to the very society at large. He relied on the Convention on Cybercrime and UN Convention on the Rights of the Child 1989. He further argued that as per the chargesheet filled by the investigating agency, the accused had been watching child pornographic videos for the past 2 years.
High court erroneously proceeded under section 14 sub section (1) of POCSO Act which deal with the use of children for pornographic purpose without giving the consideration to Section 15 subsection (1) of the POCSO Act 2012.Section 15 subsection (1) explicitly penalizes the downloading and failure to delete child pornography.
He also argued that High court committed a serious error in quashing the criminal proceeding without addressing itself on the section 15 of POCSO Act and failed to distinguish between adult pornography and child pornography of section 67 and 67A of IT act 2000 which deal with the adult pornography. While Section 67B was specifically introduced in 2009 to provide more stringent punishment for collecting download or watching child pornographic material.
Under Section 30 of POCSO Act High Courts are legally obliged to presume the existence of culpable mental state on the part of the accused for having committed any offence under the Act that requires such a mental state. Under section 15(1) of POCSO Act the possession of pornographic material involving a child in any form by itself is an offence. Downloaded pornographic material involving a child onto his mobile, retained possession of it, and failed to take any steps to delete the same for 2 years as mandated under section 19 of POCSO Act 2012.
Respondent
The respondent argued that, FIR was lodged for the offence under Section 67B of IT Act and thus, no error not to committed by the High Court by passing the impugned order.
On the date of receipt of the video recovered from the mobile phone of the accused phone i.e. 14/06/2019 at which point the 2019 amendment to Section 15 not in force. The two videos which are found on the respondent mobile are automatically downloaded by the WhatsApp which have auto download feature and the accused was unaware of their existence.
Accused has ignorance of law on the part that there was accompanied by Bonafide believe and such it would not constitute an offence under section 15 of POCSO Act and 67B of IT Act.High court in its impugned order failed to look into section 67B of IT Act. Accused have more than hundred pornographic videos which he watches regularly with his friend and it shows his intention of sharing it with his friends.
Legal aspects
Criminalization of Possession: Possession or storage of CSEAM is unequivocally an offense under Section 15(1) of the POCSO Act and Section 67B of the IT Act.
Terminology Reform: Adoption of "CSEAM" to replace "child pornography," aligning legal language with the offense’s gravity.
Intermediary Accountability: Removal of safe harbour protections for social media platforms, increasing their liability.
Procedural Clarity: Statutory presumptions apply at trial, not quashing stage, preventing premature case dismissals.
Judicial Precedent: Sets a strong precedent for interpreting child protection laws in the digital era.
Legislative Push: Calls for POCSO Act amendments to strengthen the legal framework.
Judgement
Supreme court observed that section 15 of POCSO Act consist of three distinct offences, each addressing different aspect of Child Sexual Exploitative and Abuse Material (CSEAM) possession storage and distribution. The mere possession or storage of such material without deletion or reporting is an offence under section 15 subsection (1) of POCSO Act.
Section 67B of IT Act is a comprehensive provision that not only penalizes the transmission of child pornography with also includes possession and consumption of such material.
Court further stated that in section 30 of 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.
Justice Pardiwala suggested replacing the term “child pornography” with the “child sexual exploitative and abuse material” (CSEAM) to reflect to nature of the climate which involve nonconsensual exploitative as opposed to the voluntary participation implied by the term “pornography”
The Bench further suggested that the educational institution should implement various programs that educate student about their healthy relationship, consent and appropriate behaviour that can help to prevent problem relating to sexual behaviour and other comprehensive program relating to sex education among children must be conducted from time to time for rising awareness among children across the country.
Impact and significance
Resolution of Legal Ambiguity: Prior to this judgment, there was a split among High Courts regarding the interpretation of possession versus distribution under the POCSO Act and IT Act. The Madras High Court's ruling had created uncertainty, potentially weakening legal protections for children. The Supreme Court's decision resolved this ambiguity, ensuring a uniform and strict approach across India.
Emphasis on the Gravity of the Offense: The recommendation to replace "child pornography" with "CSEAM" underscores the need for legal terminology to accurately reflect the severity of the crime. The court noted that "child pornography" trivializes the offense, failing to capture the exploitative and abusive nature of the material. This shift is crucial for ensuring that the law and society treat these offenses with the seriousness they deserve.
Setting a Precedent for Digital Age Challenges: The judgment addresses the challenges posed by the proliferation of CSEAM on digital platforms, recognizing the need for strict liability in combating child exploitation in the digital age. By holding individuals and intermediaries accountable, it sets a precedent for future cases involving online child exploitation, aligning with global trends toward stricter digital regulations.
Public Importance and Judicial Responsibility: The Supreme Court underscored the public importance of the case by setting aside the Madras High Court's judgment, which was deemed erroneous. This reflects the judiciary's commitment to protecting children and ensuring that legal interpretations align with the intent of child protection laws. The involvement of the Just Rights for Children Alliance, comprising NGOs, highlights the collaborative effort between civil society and the judiciary in addressing this issue.
Call for Legislative Action: The court's directive to Parliament to amend the POCSO Act not only addresses terminology but also sets a precedent for the judiciary to actively engage with lawmakers to address gaps in legislation. This proactive approach ensures that the legal framework evolves to meet contemporary challenges, particularly in the context of digital exploitation.
Suggestive measures:
The rising number of false POCSO (Protection of Children from Sexual Offences) cases in India is a growing concern, as it undermines the Act’s purpose of protecting children while causing significant harm to the accused and clogging the judicial system. To address this issue, authorities should prioritize thorough and impartial investigations, leveraging forensic evidence and scientific methods like DNA analysis to verify claims swiftly and reduce reliance on potentially manipulated testimonies. Training police and judicial officers to identify red flags of false complaints, such as inconsistencies or ulterior motives (e.g., family disputes or societal pressures like opposition to inter-caste relationships), is crucial. Courts should strictly enforce Section 22 of the POCSO Act, which prescribes punishment for false complaints, to deter misuse while ensuring genuine cases are not discouraged. Public awareness campaigns should educate communities about the legal and social consequences of filing false cases, emphasizing the harm to both victims and the accused. Additionally, introducing judicial guidelines to differentiate between consensual adolescent relationships and actual abuse, as suggested by courts like the Allahabad High Court, can prevent the Act’s misapplication. Strengthening fast-tracks courts and ensuring timely case resolution will also reduce the backlog of false cases, preserve the Act’s credibility, and protect children effectively.
Conclusion:
The "Just Rights for Children Alliance v. S. Harish" case is a landmark judgment with far-reaching implications for child protection laws in India. Its impact is evident in the clarification of legal provisions, the shift in terminology, increased accountability for digital platforms, and enhanced procedural guidance. Its significance lies in resolving legal ambiguities, setting precedents for digital age challenges, and reinforcing the judiciary's commitment to protecting children. This case not only strengthens the legal framework but also serves as a call to action for legislative and societal efforts to combat child sexual exploitation, ensuring a safer environment for the most vulnerable.
Supreme Court Clarifies POCSO & IT Act in Landmark CSEAM Case: Just Rights for Children Alliance v. S. Harish (2024 INSC 716)
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