Just Rights for Children Alliance & Another v. S. Harish

Introduction

In the case of Just Rights for Children Alliance & Another v. S. Harish & Others (2024), the Supreme Court has clarified the law on Section 15 of the Protection of Children from Sexual Offenses Act, 2012 (hereinafter as the POCSO Act) and Section 67 B of the Information Technology Act, 2000 (hereinafter as the IT Act).

Section 15 of the POCSO Act basically prescribes punishment for storing and transmitting any child pornographic material, and Section 67B of the IT Act also prescribes punishment for the people who publish or transmit material that is sexually explicit of the child.

On the interpretation of these two sections, several questions have remained unanswered since the very inception of these sections. Issues like-

• Whether the storage only of pornographic material in somebody’s mobile without any intention to transmit would be enough to attract the liability?
• Or if somebody doesn’t store or possess this material but only watches that material, does that amount to an offense?
• Or if that prohibited material is downloaded automatically without any knowledge of the same on the part of the person, would that be sufficient to constitute the offense?
• How and in what manner would the intention of the accused person be determined, whether it was for transmission, publication, transmission, publication, or commercial purpose?
• Whether the presumption given under Section 30 of the Act would be applicable for determination of offense under Section 15 also?

These were some of the issues that were settled by the Supreme Court in this case, and the Court, considering the purpose of both the Acts POCSO and IT, has tried to ameliorate the standard of child rights through its decision.

This case law note aims to present before the readers the facts that led to this landmark decision, the observation made by the Supreme Court, and the reasons that were given for its decision.

Additionally, the Supreme Court has also given some guidelines regarding the prevention of dissemination of child pornographic material, which also have been discussed in this case law note.

Facts

The brief facts of this judgment are:

1. The accused in this case used to watch child pornography frequently; however, he never transmitted or published that. Some videos were downloaded to his device unintentionally, and it happened automatically due to some features of that application, and the accused didn’t have any notice of that.
2. Accordingly, a complaint was filed against the accused under Section 14 of the POCSO ACT, which was later converted into Section 15 of the Act and read with Section 67 B of the IT Act.
3. The Special Court convicted the accused under the above-mentioned sections.

The accused then filed an appeal to the High Court, and the High Court set aside his conviction mainly on the following grounds:

• Instead of Section 15 of the POCSO Act, the High Court based his decision on Section 14, on which the initial complaint was filed. It was observed that since Section 14 requires that the accused must himself use the child to attract liability, and since this ingredient has not been fulfilled, the accused is not liable.
• Secondly, Section 67Bof the IT Act necessitates that there must be some form of transmission or publication by the offender, and in the absence of these accused, they may not be held liable.
• Even under Section 292 of the IPC, the obscene act must be conducted in public and not in private. Therefore, mere watching of child pornographic material shall not attract liability under this Section.

4. Based on these grounds, the High Court acquitted the accused person, and the appeal was filed with the Supreme Court.

Issues before the Supreme Court

• The scope of Section 15 of the POCSO ACT?
• The scope of Section 67 B of the IT Act?
• Difference between different clauses of Section 15?

Decision and Finding of the Supreme Court

1. Difference between Sections 15(1), 15(2), and 15(3) POCSO Act.

Section 15 of the POCSO Act has been divided into 3 sub clauses. According to Section 15(1), if any person stores or possesses any pornographic material and fails to delete it and it is for the purpose of transmission, then an offense under Section 15(1) is completed.

However, if the possession is with the intention of displaying or distributing, then Section 15(2) is attracted, and if the possession is with the intention of receiving money in exchange for that pornographic material, then it shall be deemed for the commercial purpose, and accordingly, Section 15(3) would be attracted. Therefore, Section 15(1) is least heinous and Section 15(2) is most heinous.

The Supreme Court clarified all three clauses are mutually exclusive and an individual may be punished under one clause at a time.

2. How is intention proved?

The most difficult thing in a criminal trial is to prove the intention. Whether the storage or possession of pornographic material is for personal use or for transmission, publication, or commercial use requires the arduous task of determining the intention of the doer. The Supreme clarified that

If a person is found to be in possession of any child pornographic material and he fails to delete it, then that possession is itself sufficient to prove that he intends to possess it for transmission. It means if the accused fails to give any satisfactory reason for not deleting the alleged material, then he would attract liability under Section 15(1). It is known as the reverse burden of proof and is also reflected under Section 30 of the POCSO Act and is applied here also.

However, to attract Section 15(2), some additional proof must be shown, like he has told any of his friends he possesses such prohibited material, or for Section 15(3), some more additional proof, like he has stated in some chatting groups that he wishes to any alleged child pornographic material in return for money, has to be shown.

3. Whether only watching child pornographic material without storage is an offense?

To attract liability under Section 15, what is required is possession and storage of that prohibited material. Therefore, it was argued that since the accused has only watched the prohibited content, no liability may be imposed. The Supreme Court to refute this argument gave the concept of constructive possession. According to this, even if you don’t download the material, it means lack of physical possession; there is constructive possession. Under this, you may control the alleged material. It functions on your device, and you willingly watch that. It amounts to a constructive possession.

However, if the material is downloaded automatically without any intention, then no liability arises, but there is a duty on the part of that individual to report the same to the concerned authorities.

Moreover, the Parliament through 2019 has amended the Section and added the word possession, which means downloading to your devices is not necessary to make out an offense under Section 15(1).

4. Liability under Section 67 B of the IT Act.

Section 67B of the IT Act doesn’t require that there must be transmission or publication; even storage and possession are enough to constitute an offense under this section. Again, possession would include constructive possession.

Moreover, both acts must be interpreted broadly and purposefully.

Other observations of the Supreme Court:

• The Supreme Court asked the Parliament to replace the word child pornography with child sexual exploitative and abuse material in the POCSO Act. Moreover, it directed all the courts and judicial authorities to use this word.
• Guidelines were given to all the intermediaries, like Google, Facebook, and Instagram, to observe due diligence and immediately report to the authorities if they come across any material that is sexually exploitative of the child.
• Moreover, any such duty is also reflected under Section 19 of the POCSO Act.

Conclusion

The decision in the case of Just Rights for Children Alliance & Another v. S. Harish & Others (2024) serves as a landmark decision in Indian history as it not only clarified the law relating to Section 15 of the POCSO Act but, through a wide interpretation, has given the full scope to the legislative intent behind this Section.

The concept of constructive possession has also substantiated the decision with proper and well-defined reasoning. India needs combined efforts at all levels, including individual and authoritative levels, to curb all forms of child pornography, prevent children from all forms of sexual exploitation, and provide them with a dignified and meaningful life.