In the landmark judgement of Just Rights For Children Alliance vs. S. Harish, the Supreme Court had addressed the major concerns on child pornography. Under this case the Apex court has clarified laws on child pornography under Information Technology Act, 2000 (IT Act) and Protection of Children from Sexual Offences Act, 2012 (POCSO Act). The court had clarified the legal interpretations of the laws and put emphasis on strict enforcement measures when it comes to protection of children in the current digital age.
Brief details of Just Rights for Children Alliance vs. S. Harish (2024)
| Name of the Case | Just Rights for Children Alliance vs. S. Harish |
| Case Number | Crl.A. No.-002161-002162 – 2024 |
| Dairy Number | 8562/2024 |
| Parties of the Case | Appellant – Just Rights For Children Alliance Respondent – S. Harish |
| Equivalent Citations | Criminal Appeal No(s).2161-2162/2024 |
| Type of the Case | Criminal Appeal |
| Court | Supreme Court of India |
| Statutes, Provisions, Judgements Involved In the Case | Section 15 of the Protection of Children from Sexual Offences Act, 2012 Section 67B of the Information Technology Act, 2000 |
| Bench | Hon’ble The Chief JusticeHon’ble Mr. Justice J.B. Pardiwala |
| Judgement Date | 23/9/2024 |
Genesis of the dispute
In this case, the accused used to watch child pornography very often. A FIR against the accused was registered by the Tamil Nadu police on the basis of a Cyber Tip line report by the National Crime Records Bureau. As per the report the accused was a regular viewer of child pornography.
The police seized the accused mobile during the investigation for further forensic analysis, where the experts found videos downloaded in the accused’s phone. The accused had never shared or published this material. The Special Court has found the accused guilty.
An appeal was filed by the accused in the Madras High Court in order to quash these charges. The criminal proceedings were quashed by the Madras High Court stating that simply viewing and having the possession of such videos does not violate any laws if there is no distribution of the same. The Just Rights For Children Alliance filed an appeal against this decision in the Supreme Court.
Legal provisions involved in the case
Section 15 of the Protection of Children from Sexual Offences Act 2012
This Section states the punishment for storing pornographic material which involves a child. If any person stores any pornographic material which involves a child with the purpose of commercialising it then they shall be punishable with imprisonment of three years which may be extended and fine, or both.
Section 67B of the Information Technology Act 2000
This provisions punishes if someone uses electronic devices and it involves children under 18 years of age:
- Shares or publishes any material with sexually explicit acts with children involved, or
- Promotes, distributes, creates, downloads, searches any material like images or texts which includes children in sexual ways, or
- Tries to befriend children with the intention of having any sexual act or if it could offend any reasonable adult, or
- Support or helps online child abuse, or
- If recording of child abuse is done by themselves or others using electronic devices.
The punishment for such acts will be imprisonment up to five years and a fine up to Rs. 10 lakh if the offence is committed for the first time. If the offence is repeated then imprisonment up to seven years and fine up to Rs. 10 lakh.
The provision also has an exception which states that if any material is published for education purposes, good faith,cultural or religious purposes in electronic form then this section does not apply.
Case laws cited in this case
Key issues involved in Just Rights for Children Alliance vs. S. Harish (2024)
- Whether possession of child pornographic material considered as an offence or is intention to distribute it also required?
- What is the scope of Section 15 of the Protection of Children from Sexual Offences Act, 2012?
- What is the scope of Section 67B of the Information Technology Act, 2000?
- What is the difference between subsections of Section 15 of the Protection of Children from Sexual Offences Act, 2012?
Arguments from both sides in Just Rights for Children Alliance vs. S. Harish (2024)
Grounds raised by appellant
The appellant argued that mere possession of the child pornographic material is also punishable in nature. If such material is not deleted then it shows that there is intent to share the same in future. This would violate Section 15(1) of POCSO Act. This child pornographic material can be used for unlawful purposes even if not directly transmitted. This undermines the main aim of the POCSO Act. The appellant further argued that in this digital age it is vital to interpret the laws related to child exploitation in a broader sense. If the liability is limited to distribution it would undermine the enforcement of the laws and permit exploitation.
Grounds raised by respondent
The respondent argued that mere possession of child pornographic material does not violate any law when it is not distributed. There was no evidence that the child pornographic material was distributed hence no laws were violated. The respondent also argued that he had no intention of distributing the child pornographic material, so the charges against him were groundless. Section 15 of POCSO Act and 67B of IT Act, 2000 were not violated by him.
Supreme Court Judgement in Just Rights for Children Alliance vs. S. Harish (2024)
The Supreme court clarified that all the subsections of Section 15 of the POCSO Act are to be interpreted independently. The punishment will depend on the purpose of the possession. The person shall be punished under one sub-section at a time. Even if someone is controlling or only viewing child pornographic material even if it is not stored or downloaded may still amount to possession and will attract liability.
If child pornographic material is found on the device it will be considered that there was an intent to transmit it. There should be a credible explanation of why the content is not on the device. The burden of proof will be on the accused. In order to establish liability, mere possession is sufficient even if there is no act transmission or publication of child pornographic material.
The Supreme Court also urged to change “child pornography” with “child sexual exploitation and abuse material”. This would ensure that the offence is described more accurately and will highlight the serious violation of the laws.
Conclusion
With this judgement the Supreme Court has drawn a firm and bold line which states that mere possession of child pornographic material is also a crime. There is no need to prove an intent of distributing or transmitting child pornographic material. The burden of proof lies on the individual who possesses such material. This landmark ruling strengthens the laws related to protection of children in this digital age.
References
- https://www.scobserver.in/journal/supreme-court-holds-that-viewing-storing-and-possessing-child-pornography-is-punishable-under-pocso-act-overturns-madras-hc-decision/
- https://www.hindustantimes.com/analysis/explained-scs-order-on-using-the-correct-terminology-for-child-pornography-101727358479762.html#:~:text=The%20Supreme%20Court%20recently%20delivered,of%20the%20Madras%20High%20Court
