Just Right For Children Alliance v. S.Harish

Hamna fahad

Aligarh Muslim University, Aligarh

This Case Commentary is written by Hamna fahad, a Fourth-Year Law Student of Aligarh Muslim University, Aligarh

CASE Details -

CASE NAME - JUST RIGHT FOR CHILDREN ALLIANCE V. S.HARISH

COURT - SUPREME COURT OF INDIA

BENCH- 2 BENCH JUDGES; JUSTICE J.B. PARDIWALA, D.Y. CHANDRACHUD

CASE TYPE - CRIMINAL APPELLATE JURISDICTION, CRIMINAL APPEAL NOS. 2161-2162 OF 2024

DECIDED ON - 23RD SEPTEMBER 2024

PARTIES-

APPELLANT - JUST RIGHT FOR CHILDREN ALLIANCE & ANR.

RESPONDENT - S. HARISH & ORS.

Abstract

The 2024 Supreme Court case Just Rights for Children Alliance & Another v. S. Harish & Others is an important decision that clarifies parts of the Protection of Children from Sexual Offence Act, 2012 (POCSO Act), and the Information Technology Act, 2000 (IT Act). The case dealt with serious issues about how child pornography is stored, shared, and possessed, and it highlights the legal boundaries and responsibilities that people and organizations have under these laws.[1]. The Court's decision aimed to clarify long-standing ambiguities surrounding liability and intent, underscoring the necessity of safeguarding child rights in our increasingly digital world. The judgment also provided essential guidelines to help prevent the spread of child sexual abuse material (CSEAM).

Facts of the Case

The case revolved around an individual who was found frequently viewing child pornographic content. Importantly, he did not transmit or publish any of this material. Some content had automatically downloaded to his device due to specific app features, without his knowledge. A complaint was initially filed under Section 14 of the POCSO Act, but it was later amended to include Sections 15 and 67B of the IT Act. While the Special Court found the accused guilty, the High Court overturned this ruling. The court reasoned that Section 14 required active involvement of the child, and Section 67B involved transmission or dissemination, which did not happen in this case.[2] This led to an appeal to the Supreme Court.

Issues Raised [3]

Interpretation of Section 15 of the POCSO Act

Section 15 of the POCSO Act addresses the punishment for storing or possessing child pornographic material. The key issue here is whether possession alone, without the intent to transmit, constitutes an offense. According to the section, possession with the intent to use the material for sexually exploitative purposes is criminalized. Mere possession might not necessarily lead to liability unless it is accompanied by the intent to transmit or use for illegal purposes. However, courts may consider whether the accused knew the content and any circumstances suggesting exploitation or distribution.

Interpretation of Section 67B of the IT Act

Section 67B of the Information Technology Act deals with the punishment for publishing, transmitting, or browsing child pornographic material online. The section explicitly mentions transmission or publication, meaning that merely possessing such material without transmitting or distributing it may not automatically fall under this section. However, some judicial interpretations might focus on the broader scope of “browsing,” which could imply potential liability if there is evidence of active seeking out or repeated viewing of such content, even if no transmission occurs.

Differences Among Subsections of Section 15 of the POCSO Act

· Section 15(1): Primarily targets the use of child pornographic material to cause harm or sexual exploitation. This requires intent.

· Section 15(2): Focuses on possession of such material for commercial purposes or distribution, which also implies intent.

· Section 15(3): Allows for lesser punishment if the individual voluntarily deletes or destroys the material upon discovering its nature. This indicates some level of leniency for those who can show good faith in removing the content promptly.

Concept of Constructive Possession

Constructive possession refers to a legal situation where an individual may not have physical possession of illegal content but exercises control or dominion over it. In the context of child pornographic material, simply watching such content online, without downloading it, could still result in liability under constructive possession if the individual can access and control the material (e.g., via bookmarks, repeat access). Courts may look at the extent of the individual's interaction with the content and whether they intended to view or store it for illegal purposes.

Determining Burden of Proof and Intention

In cases involving child pornographic material, the burden of proof typically rests with the prosecution to show that the accused had the necessary intent to store, use, or distribute such material for exploitative purposes. Courts will assess the surrounding circumstances, including whether the accused knew the material, the frequency of access, any efforts to transmit, and the context in which the content was discovered. While intent can be difficult to prove, a pattern of behavior or evidence indicating exploitation could weigh heavily against the accused. Additionally, good faith efforts to remove or report the material may mitigate liability in some cases.

Arguments for the Appellant

Implications of Storage and Possession

The prosecution argued that simply possessing or storing child pornographic material, especially if not deleted, implies an intent to transmit or distribute. This could trigger liability under Section 15(1) of the POCSO Act, as the retention of such material suggests a potential for unlawful use, even without direct evidence of transmission.

Concept of Constructive Possession

The prosecution argued that the concept of constructive possession should apply even when prohibited content, such as child pornographic material, is viewed without active downloading. According to their argument, merely watching the content online should be considered constructive possession, as the material is effectively within the accused's control. The prosecution posited that by accessing the content, the accused exercises a level of dominion over it, similar to someone who downloads it, thereby warranting liability under child protection laws. This argument broadens the interpretation of "possession" to include both direct and indirect control of illegal material.

Public Interest Considerations

In supporting a broader application of the law, the prosecution emphasized the importance of protecting children from all forms of sexual exploitation, particularly in the digital age. They argued that a narrow interpretation of the law would hinder efforts to combat the pervasive spread of child pornographic material. Given the increasing accessibility of such content online, they maintained that a comprehensive approach, encompassing both active and passive forms of engagement (such as viewing), was necessary to uphold the public interest. A more expansive interpretation, they contended, is crucial for effective law enforcement and for deterring potential offenders from exploiting legal loopholes.

Arguments for the Respondent

Absence of Intent

The defense argued that the accused had no intention of storing or transmitting child pornographic material, emphasizing that the automatic downloading of content occurred unintentionally. They contended that this lack of intent should absolve him of any liability.

No Evidence of Transmission or Publication

The defense further asserted that since the accused did not transmit or publish any material, he should not be held liable under either Section 67B of the IT Act or Section 15 of the POCSO Act. They maintained that the absence of any active distribution eliminated grounds for legal responsibility.

Private Viewing Argument

Additionally, the defense claimed that privately watching child pornographic material should not incur legal consequences. They referenced Section 292 of the Indian Penal Code (IPC), which typically requires public display for liability to apply, suggesting that private viewing should not be treated the same way.

Relevant Legal Provisions[4]

Section 15 of the POCSO Act, 2012: This section penalizes individuals for storing, possessing, or transmitting child pornographic material and is divided into three subsections:

Section 15(1): Addresses storing material with the intent to transmit it.

Section 15(2): Focuses on storing material for display or distribution.

Section 15(3): Concerns the storage of material for commercial purposes, such as selling it.

Section 67B of the Information Technology Act, 2000: This provision prescribes penalties for publishing, transmitting, or electronically possessing child pornographic material.

Section 30 of the POCSO Act: This section establishes a presumption of guilt if the accused fails to satisfactorily explain their possession of prohibited material, placing the burden on the accused to prove their innocence.

Section 292 of the Indian Penal Code (IPC): This section deals with obscene acts and materials, stipulating that legal repercussions apply only if such acts occur in public settings.

Key Elements of the Judgment

● Clarification of Section 15 of the POCSO Act: The Supreme Court made it clear that the subsections of Section 15 are distinct from one another, meaning an individual can only be punished under one subsection at a time, depending on the purpose of their possession. Among these, Section 15(1) is considered less serious, while Section 15(3) involves more severe penalties related to commercial exploitation.

● Introduction of Constructive Possession: The Court recognized that even if an individual does not physically store child pornographic material, simply watching or controlling it online constitutes possession and could lead to liability.

● Burden of Proof and Intention: The Court determined that failing to delete child pornographic material from a device indicates intent to possess it for transmission, thus shifting the burden of proof. The accused must provide a satisfactory explanation for not deleting the content, or else they face liability under Section 15(1).

· Clarification on Section 67B of the IT Act: The Court affirmed that mere possession of child pornographic material, irrespective of any transmission or publication, is sufficient to incur liability under Section 67B. This interpretation aligns with the section's overarching goal of combating child sexual exploitation.[5]

· Terminology Update: The Court recommended that lawmakers replace the term "child pornography" with "child sexual exploitation and abuse material." This change aims to more accurately reflect the serious nature of these offenses and emphasize the exploitation involved.[6]

Conclusion

The Supreme Court's ruling in Just Rights for Children Alliance & Another v. S. Harish & Others marks a crucial step in fortifying legal measures against child sexual exploitation. By providing clarity on the interpretation of Sections 15 of the POCSO Act and 67B of the IT Act, the Court has established that individuals who store or even merely watch child pornographic material can be held accountable. The introduction of the concept of constructive possession and a reverse burden of proof underscores the accountability of individuals in preventing the proliferation of harmful content. This judgment plays a crucial role in protecting children from sexual exploitation in the digital age, reinforcing their right to live free from harm. By holding individuals responsible for both active and passive engagement with such material, the ruling emphasizes the need for vigilance and proactive measures in safeguarding vulnerable populations.

REFERENCE

[1] KRISHNADAS RAJGOPAL, WATCHING “CHILD SEX ABUSE” MATERIAL IS AN OFFENCE:SC,THE HINDU,SEPTEMBER 24,2024, AVAILABLE https://www.thehindu.com/.

[2] https://www.jyotijudiciary.com/just-rights-for-children-alliance-another-v-s-harish/ (last visited on October 8,2024)

[3] https://www.hindustantimes.com/analysis/explained-scs-order-on-using-the-correct-terminology-for-child-pornography-101727358479762.html (last visited on October 8,2024)

[4] https://colab.research.google.com/drive/1IgTlqai65dywZmy6xOt3aW8wGq1MOIu7#scrollTo=C0soGRRtVp8w (last visited on October 8,2024)

[5] https://www.hindustantimes.com/analysis/explained-scs-order-on-using-the-correct-terminology-for-child-pornography-101727358479762.html (last visited on October 8,2024)

[6] https://www.hindustantimes.com/analysis/explained-scs-order-on-using-the-correct-terminology-for-child-pornography-101727358479762.html (last visited on October 8,2024)