CASE COMMENT: Just Rights for Children Alliance Vs. S. Harish (2024 INSC 716)

AUTHOR:

This article was authoresd by Ms. Agnesmaria Joby, who is currently a student at Government Law College, Thiruvananthapuram, pursuing her Masters degree in Law.

INTRODUCTION:

“…in serving the best interests of children, we serve the best interests of all humanity.

                                                                                                            – Carol Bellamy”

Children are the assets of our Nation. As said by Carol Bellamy, the executive and former director of the Peace Corps of the United States, by protecting the children we serve, we protect the very interests of humanity. Protecting children in this digital era is ensuring them with their fundamental rights of education, safety, health care, etc. This could only be possible through the collective efforts of law-abiding citizens. In the present scenario, we have international and national laws regarding the protection of children, such as the United Nations Convention on the Rights of the Child (UNCRC), International Labour Organisation Conventions, UDHR 1948, and the South Asian Association for Regional Cooperation Convention on Preventing and Combating Trafficking in Women and Children. And at the national level, we have the Juvenile Justice Act (2015), the POCSO Act (2012), the Prohibition of Child Marriage Act (2006), the Right of Children To Free And Compulsory Education Act (2009), the Child Labor (Prohibition And Regulation )Act,1986, the Information Technology Act (2000) …etc. Even if all these laws exist, in today’s digital era, children are facing huge threats of online child sexual abuse and exploitation. Technological advancements have made detecting and punishing offenders more difficult.

In the case “Just Rights for Children Alliance Vs. S. Harish (2024) INSC 716 Supreme Court of India bench comprised of Justice D.Y. Chandrachud and Justice J.B. Pardiwala addressed a sensitive issue regarding the viewing, storing and possession of child pornographic videos as a crime against society in India. The court widely interpreted the scope of the POCSO Act and I.T A ct in protecting the children from exploitation in the digital era.

FACTS OF THE CASE:

On 29/01/2020, all women’s police stations in Ambattur, Chennai received a letter from the additional deputy commissioner of police mentioning that, as per CTR of NCRB, S. Harish, who was a resident of Ambattur, was an active consumer of pornography, including child pornography, for the past 2 years. The report showed that he had allegedly downloaded and viewed child pornography on his mobile phone. Harish had downloaded all materials for indulging in sexual activity. An F.I.R was registered against him on the same day for the offences under Section 67 B of the I.T. Act and Section 14 (1) of POCSO Act.

During the investigation, Harish’s phone was sent for forensic analysis. According to the report, it was found that the respondent’s phone had contained 2 child pornographic video files depicting 2 minor boys involved in sexual activity with an adult woman. The report suggested that more than 100 videos of pornography were downloaded and saved on that mobile phone. And meanwhile on this period harish had already admitted that he was an active consumer of pornography during college time.

Upon completion of the investigation, section 67B of I.T Act and section 15(1) of POCSO Act was added in the chargesheet against Harish. The police marked that Harish had committed an offence against social order and public morality; therefore, he has committed a cognizable offence under Section 67 B of I.T Act and 15 (1) of POCSO Act.

Harish then approached the Madras High Court to quash the proceedings against him. The High Court of Madras had passed an order favourable to him by stating that to impose Section 14 of POCSO Act, a child must have been used by the person accused for pornographic purposes. It was observed that although the two videos depicting children engaged in a sexual activity were found to have been downloaded and stored in the mobile phone belonging to the Respondent No. 1, and assuming that the accused had watched the same, yet the same would not constitute an offence under Section 14(1) of the POCSO. 1

And secondly, Court is of the view that for invoking section 67 B of I.T Act, accused must have created, published or transmitted any sexually explicit conduct of children but in this case accused only stored and viewed the videos. Hence, Court is of the view that this section does not include the act of only viewing or storing the video and the accused had not committed any offence. Aggrieved by this decision Appellants approached Supreme Court of India.

ISSUES:

Before the analysis of this case, let’s have a look at the issues involved in the case.

1. What is the scope of Section 15 of the Protection of Children from Sexual Offences (POCSO) Act?
2. Whether viewing, storing, or possessing any child pornographic material is punishable under POCSO Act?
3. What is the scope of Section 67B of the Information Technology Act?
4. Whether the presumption of culpable mental state under section 30 of POCSO Act can be invoked in this case?

CONTENTIONS OF THE APPELLANTS:

Appellants contended that, the interpretation of provisions of POCSO Act by the Madras High Court in a manner that does not include viewing or storing child-abusive materials as an offence, poses a threat to children’s safety and thereby affects the social order. For supporting the contentions, the Appellants relied on international conventions, such as the United Nations Convention on the Rights of the Child (UNCRC) and the Convention on cybercrimes etc.

The Appellants further contended that the High Court completely avoided the charges in the chargesheet, which included Section 15 of POCSO Act. Section 15 penalizes downloading and failure to delete child pornography. In the present case, the Respondent stored two child pornographic videos, thus within the scope of Section 15 of the POCSO Act.

While interpreting the scope of Section 67 B of the I.T Act, the Appellants contended that the Madras High Court failed to differentiate child pornography and adult pornography as in Section 67 and 67 A and 67B was not fully taken into consideration by the court. With regard to Section 30 of the POCSO Act, the Appellants contended that there arose a clear presumption of culpable mental state of the accused as the accused had admitted that he was a porn addict during his college days and he used to share it with his friends in college thus, making  it evident that he saved the child abusive videos with the intention to share it with his friends.

Appellants contended that a conjoint reading of all these sections shows that the High Court erred in its decision. The Respondent had committed an offence against society.

The Appellants’ contentions against the State (Resp. 2 & 3) were that, they created a serious lapse in charging Section 15 of the POCSO Act and they failed to provide a safe online environment for children for their various technical requirements, which was guaranteed under Article 12 of the UNCRC.

CONTENTIONS OF THE RESPONDENT:

The major arguments of the Respondent were that the F.I.R against the Respondent was lodged under Section 14(1) of the POCSO Act and Section 67B of I.T Act; hence, the interpretation of the High Court was accurate, and that he had not committed any offence. Regarding addition of section 15 (1) of POCSO Act, the Respondent claimed that the current section was added through the 2019 Amendment to the Act. The act of watching child pornography was committed by the Respondent on 14 /06/2019, and on that date, the amendment had not come into force. By referring to various precedents, the Respondent claimed that he was unaware of the law.

In the matter of storing and downloading of child-abusive videos, the Respondent’s argument was that “WA” in the file names indicates that they are auto-downloaded. The Respondent further argued that the State could not presume the existence of culpable mental state on the part of the accused as the offence stated as committed was not in force when the alleged act of watching a storing the video had taken place and neither was he aware of the presence of such law which is in fact the failure of the State to sensitize such information to the public.

JUDICIAL REASONING:

The Apex Court, before indulging in reasoning, explained the need for the enactment of the POCSO Act in 2012. The Supreme Court clarified that, the POCSO Act is a practical implication of Art.15(3) and Art. 39 of the Indian Constitution. Article 15(3) empowers the State to make any special provision for women and children, and Article 39 forces the State to take measures for protecting the tender age of children so that they are not abused and to provide children and youth with freedom and dignity and prevent moral and material abandonment.

The Supreme Court also mentioned the international measures initiated by the United Nations, such as the United Nations Convention on the Rights of children which was ratified by India on 11 December 1992. As per this convention, State Parties should undertake all appropriate National, By-lateral and multilateral measures to prevent

(a) the inducement or coercion of a child to engage in any unlawful sexual activity;

(b) the exploitative use of children in prostitution or other unlawful sexual practices; and

(c) The exploitative use of children in pornographic performances and materials.2

Before the enactment of this Act, there was an inadequacy of law in dealing with sexual offences against children; even though the Indian Penal Code had provisions, it did not completely serve the purpose. The enactment of POCSO Act had paved the way for the immediate disposal of child-related offences through special courts.

According to Section 2 of POCSO Act, a child is any person who is under the age of 18, irrespective of gender; any offence against a person below the age of 18 will fall under POCSO Act. Section 2(1) (da) defines child pornography, which includes the visual depiction of a child involved in sexually explicit conduct.

Legal issues were addressed by the Court after providing a glimpse of the POCSO Act. The first issue dealt with by the court was to interpret the scope of section 15 of POCSO Act. Section 15 of POCSO Act mainly contains 3 distinct offences: possession, storage and distribution of CSEAM. Possession and storage of child explicit material is punishable under Section 15(1), and sections 15(2) and (3) deal with transmission and selling of these materials. The concept of possession, constructive possession and immediate control was also interpreted by the Court. Thus, by analyzing Section 15, the Apex Court interpreted that mere storing, possessing, and distribution of child abusive contents itself, is a punishable offence.

The second issue dealt with by the court is the scope of Section 67 B of the I.T. Act.

Section 67 B is a comprehensive section which punishes the publishing and transmitting of materials depicting children involved in a sexually explicit act in electronic form. Court specifically mentioned that, for the purpose of this Act, child’ is defined as any person who has not completed the age of 18 years. By thorough examination and interpretation of sub clauses of section 67B, the Apex Court concluded that the offence committed by the Respondent falls under Section 67(e) which states that any act of exposing or subjecting a child to any explicit act by anyone and recording the same in electronic form, is punishable.

The third issue dealt with by the Court was the presumption of culpable mental state under Section 30 of POCSO act. The Court explained that culpable mental state includes intention, motive and knowledge of a fact and belief in the fact. The Court is of the opinion that in every POCSO case, presumption of culpable mental state will normally exist. The Court was of the opinion that a culpable mind can be proven at the trial stages by special courts.

The court also recommended to the use the term “child sexual exploitative and abusive material (CSEAM)” rather than child pornography.

MAJOR JUDICIAL PRECEDENTS ANALYZED:

• “Independent Thought Vs. Union of India” (2017)

The case emphasized the requirement of stringent laws for offences against children, and the case explained the relevance of POCSO Act. Each and every word in the Act should be interpreted in a manner beneficial to the children.

• “Attorney General for India Vs. Satish” (2021),

The Court emphasized that the only intention of POCSO Act is to ensure right and dignity of children.

• “Nawabuddin Vs. State of Uttarakhand” (2022)

The Court held that any act of sexual exploitation or sexual assault should be dealt with in a stringent manner.

CRITICAL ANALYSIS:

The Supreme Court of India, through the judgment of “Just Rights for Children Alliance v. S. Harish (2024)”, provided a new interpretation for India’s child protection laws. Through this judgement, the Apex Court quashed the narrow interpretation of the Madras High Court for not penalizing the storing and viewing of child pornography. The Apex Court addressed that these are serious offences affecting the dignity and freedom of children. Throughout the analysis of the laws, the Supreme Court bench, comprising of Justice D.Y Chandrachud and Justice Pardi Wala, gave emphasis to international and national laws regarding children. The major acts that came under the limelight in this case were the Information Technology Act,2000 And POCSO Act, 2012, and the Acts are relevant while determining the safety of children in the digital era. The I.T Act was primarily created for dealing with cybercrimes, but through various recommendations a provision was added to it for offences against children in digital forms.

The major provisions of POCSO Act and I.T Act involved in the case were interpreted in a literal aspect by the Madras High Court, but the Apex Court provided a wider interpretation and explained the need for child protection in this digital era. India, being a democratic country has made many efforts to protect its citizens, especially children, who are considered as the nation’s assets. India had ratified UNCRC in 1992, and as a result, various child protection laws had been enacted here. In this case, the Supreme Court had filled a gap in the area of digital abuse of children. By interpreting the I.T Act in a manner that includes the Respondent’s act as punishable, the Bench had once again brought a new light towards the dignity and protection of the child as enshrined in the Constitution.

While interpreting the laws, the Apex Court expanded the scope of possession in Section 15 of POCSO Act, by including constructive possession. Watching a child pornographic video and downloading and keeping it comes under constructive possession. The crime committed in this case is in the nature of an inchoate offence.

Another part of this judgment is the imposition of a culpable mental state of accused. The High Court of Madras opined that the burden to prove mental state is on the prosecution but the Apex Court established the principle that it can be presumed that any person who is involved in a child-abusive act is in a culpable mental state and thus it becomes the duty of the accused to prove the contrary.

Even if India is not a member of the BUDAPEST CONVENTION ON CYBERCRIMES, the Court’s usage of the concept of “digital possession” matches international standards of punishing cybercrime against children.

Lastly, the Court’s direction to use the term – “child sexual exploitative and abusive material (CSEAM)” other than the term “child pornography”, expresses the efforts of our legal system to show the intensity and gravity of offences against children and the need to protect children.

CONCLUSION:

India is creating significant changes in its legal system every day, to adapt to the varying situations of our society. Throughout this judgment, we can see the wider interpretations given by the Court to each provision to safeguard the future of our country, that is, the children. As children are the most vulnerable group, the chances of exploiting them are higher and the laws essentially need to be more stringent. But a thing needed to remember in this scenario is that the laws should never create any barrier to the freedom and dignity of a child in the name of protection.