About the Author
This article is written by Hasnath K.H. She has completed her 5 year integrated BCom LL.B from Government Law College, Ernakulam. She is currently practising law in Muvattupuzha Court Complex. She is also an editor trainee at ljrfvoice.com.
INTRODUCTION:
The Protection of minors from Sexual Offences Act of 2012 attempts to protect minors from sexual assault, harassment, and pornography while also establishing special trial tribunals. The Act is based on Article 15(3) of the Indian Constitution, the Indian government’s membership to the Convention on the Rights of the Child, and the necessity of preserving children’s privacy and confidentiality. The Act also punishes the storage of pornographic material involving a minor with imprisonment for up to three years, a fine, or both. The legislation attempts to protect children’s best interests and well-being at all stages of development.
Just Rights for Children Alliance v. S.Harish:
In the case of Just Rights for Children Alliance v. S.Harish [1], The Protection of Children from Sexual Offences Act, 2012 (the “POCSO Act”) states that it is illegal to merely view, possess, or store any material that shows minors engaging in sexual activity. This ruling was made on September 23, 2024, by a Division Bench made up of Chief Justice D.Y. Chandrachud and Justice J.B. Pardiwala. The ruling resolves a protracted dispute between High Courts about the applicability of Section 67B of the Information Technology Act, 2000 (the “IT Act”) and Section 15 of the POCSO Act to the “mere storage” of “child pornography.” Specifically, it overruled the Madras High Court’s ruling in S Harish v. Inspector of Police and Others [2](2024), which had halted criminal proceedings against a POCSO accused after determining that neither the POCSO nor the IT Act penalized downloading or viewing “child pornography” in and of itself. According to Section 15(1) of the POCSO Act, “anyone, who keeps or possesses” “child pornography” and “fails to remove or destroy or report” it may be fined up to 5,000 rupees, and on a third offense, up to 10,000 rupees. According to Section 15(2), there is a harsher penalty of up to three years in jail if the possession and storage are done with the intention of “transmitting or propagating or displaying or disseminating.”
Numerous High Courts have ruled that in order to prove a Section 15 violation, it was necessary to establish the purpose to distribute or utilize the content for commercial gain. The Supreme Court made it clear that each of Section 15’s subsections defines distinct offenses. Child pornography is illegal to “publish” or “transmit” according to Section 67B of the ITAct. The Court decided that Section 67B penalizes the “production, possession, propagation and consumption of such material” in addition to the “electronic dissemination” of child pornographic content. Judge Pardiwala discussed the necessity to stop using the phrase “child pornography” and replace it with “child sexual exploitative and abuse material” since the latter term better captures the reality of these crimes. He suggested that the POCSO Act be amended by the Parliament to replace the phrases.
In January 2020, Tamil Nadu police registered an FIR against S. Harish for being an active consumer of child pornography. Analysis of Harish’s phone revealed two videos, revealing missing and exploited children. Harish was charged under Section 15(1) of the POCSO Act and Section 67B of the IT Act in September 2023. The Madras High Court ruled that the possession or storage of child pornography was not an offense under the POCSO Act and Section 67B of the IT Act, as it only criminalizes the act of transmission, publication, or creation of child pornography. An NGO, ‘Just Rights for Children Alliance’, appealed against the decision, arguing that it would create an impression that downloading and possessing child pornography is not an offense. Justice Pardiwala clarified the scope of Section 15 of the POCSO Act, noting that different High Courts have interpreted it differently to include or exclude possessing, downloading, and viewing child pornography as an offense.
Section 15 of the IT Act provides for three distinct offences that penalize the storage or possession of child pornographic material when done with three separate intentions. These offences are based on the failure to delete, destroy, or report the material, the actual transmission, propagation, display, or distribution of the material, and the storage or possession of child pornographic material when it was done with a commercial intent. The mens rea (intent) is gathered from the actus reus (action) of possessing the material but not reporting it.
Section 67B of the IT Act is a comprehensive provision that penalises the consumption of child pornography. It contains five subsections, each outlining different offenses dealing with electronic child pornography. The Court clarified the scope of each subsection, including direct or indirect involvement in dissemination, publication, or transmission of child pornography, acts of creating, propagating, engaging with or using child pornography, enticing or inducing children through computer resources to engage in sexual acts with minors, any act that can likely “aid, enable or support” online sexual abuse of children, and exposing or subjecting children to sexually explicit acts and recording it in electronic form.
The High Court must consider the presumption of ‘culpable mental state’ under POCSO when deciding whether a case should be quashed. For a Section 15(1) offence, the prosecution has to show the foundational fact that the accused was in possession of child pornography and did nothing to get rid of it or report it. The burden lies on the accused to establish that they were innocent.
In a case of ‘child pornography,’ the victimization of the minor starts with the sexual act, continues and deepens with the recording of the act, perpetuation of photos and videos, and creates a “ripple of trauma” for the child. Justice Pardiwala has suggested that the term “child sexual exploitative and abuse material” (CSEAM) should be used instead of “child pornography” to better represent the act. The judgement urges Parliament to consider amending the POCSO to replace “child pornography” with “CSEAM” and urges the Union to bring about the proposed amendment through an ordinance. It also warns all courts not to use the term “child pornography” in judicial orders and judgments.
The court also highlighted the obligation of social media intermediaries to report child pornography under various laws, which they have ignored. Sections 19 and 20 of the POCSO Act mandate individuals, media, hotel staff, hospital staff, clubs, and studios to report or give information about any child pornographic material. Failure to do so could result in imprisonment of up to six months.
The court also noted that Section 79 of the IT Act, also known as the ‘Safe Harbour’ provision, does not apply to child pornography. If the government informs the intermediary that any link hosted by the intermediary is being used to commit an offense, it must remove or disable access.
The Supreme court directed the Ministry of Women and Child Development to implement comprehensive sex education programs, provide psychological counselling, therapeutic interventions, and educational support to victims of child pornography. It also suggested public campaigns on child sexual exploitative material and the identification and support of at-risk young people with “problematic sexual behavior.” Schools were also directed to implement early identification and intervention programs for children with PSB.
CONCLUSION:
The Supreme Court’s ruling in S. Harish v. Just Rights for Children Alliance establishes stringent measures against child sexual exploitative material, emphasizing the need for clarity in legal definitions. It calls for reforms in legislation and social responsibilities, highlighting the importance of protecting minors and ensuring accountability among those who encounter such reprehensible content. Further, the Supreme Court reversed the ruling of the Madras High Court, which had halted criminal proceedings against a POCSO accused after determining that neither the POCSO nor the IT Act penalized downloading or viewing “child pornography” in and of itself.
[1] CRIMINAL APPEAL NOS. 2161-2162 OF 2024 and 2024 Latest Caselaw 598 SC
[2] 2024:MHC:5769
