The Supreme Court of India, in its recent judgment on Just Rights For Children Alliance & Anr. v. S. Harish & Ors. (Criminal Appeal Nos. 2161-2162 of 2024), has set a significant precedent by expanding the legal definition of “possession” of child pornography. The court has introduced the doctrine of “constructive possession” in the context of child pornographic material, highlighting the growing menace of online child sexual exploitation. This decision underscores India’s legal framework under the Protection of Children from Sexual Offences (POCSO) Act and the Information Technology (IT) Act, 2008.
Background Child Pornography case:
On January 29, 2020, the All-Women’s Police Station in Ambattur, Chennai, received a Cyber Tipline Report from the National Crimes Record Bureau (NCRB). The report alleged that Respondent No. 1 was an active consumer of child pornography, having downloaded explicit material involving children on his mobile device. Consequently, an FIR was filed against the accused under Section 67B of the IT Act and Section 14(1) of the POCSO Act.
Upon forensic investigation, the accused’s mobile phone was found to contain two videos related to child pornography, alongside over 100 other pornographic files. Following this, a chargesheet was filed on September 19, 2023, under Section 15(1) of the POCSO Act, replacing the original Section 14(1) charge due to the nature of the evidence uncovered.
Section 15 of POCSO Act: Expanding the Definition of Possession
A major takeaway from this was the interpretation of Section 15 of the POCSO Act, which penalizes the possession or storage of child pornographic material. The court emphasized that the 2019 amendments to POCSO were crucial in introducing a nuanced distinction between various levels of culpability under different sub-sections of Section 15.
These are:
- Sub-section (1) criminalizes mere possession of child pornography without intent to distribute or transmit.
- Sub-section (2) targets individuals who are involved in the transmission, propagation, or distribution of such material.
- Sub-section (3) focuses on possession with commercial intent, criminalizing those who store such material for monetary gain.
Before the 2019 amendments, the POCSO Act only criminalized possession for commercial purposes. The inclusion of the term “possession” alongside “storage” has widened the scope, now criminalizing individuals who may have access to child pornography without necessarily downloading it.
Constructive Possession: A Legal Innovation
One of the most crucial contributions of this judgment is the introduction of the concept of constructive possession, particularly in relation to online child sexual exploitation material (CSEM). Constructive possession extends beyond mere physical control of contraband material to situations where the accused exercises power or control over it.
For example, the court cited U.S. case law (U.S. v. Romm and U.S. v. Tucker) to elaborate that individuals who browse or view child pornography, without downloading or storing it, can still be held accountable under the doctrine of constructive possession. The court clarified that the power to manipulate, modify, or delete such material amounts to exercising control, thus constituting possession under Section 15 of the POCSO Act. Even if such material is deleted, the individual’s earlier control over it can still be used as evidence of possession.
This interpretation is important for dealing with modern cybercrimes where offenders often try to bypass laws by using methods that avoid physical storage, such as sharing links to cloud-stored child pornography or streaming such content without downloading it.
Divergence in High Court Judgments
The Supreme Court also addressed the divergent opinions from various High Courts regarding the interpretation of Sections 15 of the POCSO Act and 67B of the IT Act. Several cases have highlighted this cleavage of opinion:
- Nupur Ghatge v. State of Madhya Pradesh: The court held that merely transmitting child pornography warrants the application of Section 67B of the IT Act, leaving the burden of proof on the accused during trial.
- P.G. Sam Infant Jones v. State (Madras High Court): The court differentiated between general and child pornography, emphasizing that even viewing child pornography falls under Section 67B.
- Ajin Surendran v. State of Kerala: The Kerala High Court held that downloading child pornography is punishable under Section 67B, while storing it with the intent to transmit falls under Section 15 of POCSO.
- Lakshya v. State of Maharashtra: This case reaffirmed that storing and forwarding child pornographic material is an offense under both POCSO and the IT Act, regardless of whether the accused created the material.
These varying interpretations underscore the complexity in applying laws around cybercrimes, particularly those involving child exploitation.
Expanding the Definition of Child Pornography
Another critical aspect of this judgment is the court’s effort to clarify what constitutes “child pornography” under Section 67B of the IT Act. This section, introduced in 2008, criminalizes several acts, including publishing, transmitting, browsing, or downloading obscene material depicting children. The law also covers grooming or enticing children for sexual exploitation.
The Supreme Court highlighted that, with the rapid evolution of digital technology, the law must evolve to address new forms of cybercrimes involving children. The court referred to the 2019 amendments, which introduced Section 2(1)(da) to the POCSO Act, defining “child pornography” as any visual depiction of sexually explicit conduct involving a child, including digitally generated images or modified content that appears to involve a child.
The Role of Presumptions in Prosecution
A significant part of this judgment involves the discussion on statutory presumptions. In many complex criminal cases, including cybercrimes involving child pornography, it becomes challenging for the prosecution to prove the accused’s mental state (mens rea). To address this, laws like POCSO incorporate statutory presumptions that allow courts to assume culpability unless the accused can prove otherwise.
The court explained that the prosecution must first establish “foundational facts,” such as the possession or storage of child pornography before a statutory presumption can be applied. The accused can rebut this presumption during trial by providing contrary evidence. However, the court clarified that these presumptions should not be applied prematurely, such as during the quashing of cases in the High Court before a full trial has taken place.
Ignorance of the Law as a Defense
The judgment also touched upon the defense of ignorance of the law, which is often invoked in cybercrime cases. For such a defense to be valid, it must meet specific criteria, including the accused’s genuine ignorance of the law and a bona fide belief in the rightness of their actions. However, the court ruled that this defense is not applicable in cases of child pornography, as there is no legitimate right to possess or store such material. Ignorance of the law cannot absolve individuals from liability in such cases.
The Global and National Significance of Combating Child Pornography
The court stressed the urgency of combating child pornography, particularly in the digital age. Child Sexual Exploitative and Abuse Material (CSEAM) poses grave harm to the dignity and well-being of children, reducing them to objects for sexual gratification. The court emphasized the psychological and emotional trauma inflicted on victims, calling for strict legal measures to curb the distribution and consumption of such material.
Additionally, the judgment called for changes in legal terminology, recommending that “child pornography” be replaced with “CSEAM” to better reflect the gravity of these offenses. It also urged for public awareness campaigns, better rehabilitation programs for offenders, and stronger support systems for victims
This landmark judgment by the Supreme Court of India has far-reaching implications for the legal treatment of child pornography and online sexual exploitation of children. By expanding the definition of possession and introducing the concept of constructive possession, the court has set a new standard for tackling cybercrimes involving children. The judgment also highlights the need for public awareness, legal reforms, and robust enforcement to protect children from exploitation in the digital age.
