Supreme Court’s landmark ruling on Child Pornography: Legal shift amid gaps in recommended policies

On September 23, 2024, the Hon’ble Supreme Court delivered a landmark Judgement in Just Rights for Children Alliance v. S Harish, a case centred around the possession and viewing of ‘child sexual exploitation and abuse material’ (CSEAM). The Madras High Court had previously quashed the criminal proceedings against the accused, holding that mere possession/ storage or viewing  of pornographic material depicting children without any intention to transmit is not an offence under Section 67B of the Information Technology Act, 2000 (IT Act) and Section 15 of the Prevention of Children from Sexual Offences Act, 2012 (POCSO Act)”.

However, Hon’ble Supreme Court held that even accessing CSEAM online, regardless of storing or distributing the material, amounts to “constructive possession” of such content and is punishable under Section 15 of the POCSO Act. This ruling broadens the understanding of what constitutes possession of child pornography, ensuring that individuals who access these materials are held accountable, even if they do not store, download or distribute it.

The judgement is not only landmark for this contemplation of constructive possession of child pornography, but also for laying out clear guidelines regarding the statutory presumption of mental state under Section 30 of the POCSO Act. The Court has now clarified the foundational facts that an adjudicating authority must assess to invoke this presumption in cases involving possession of CSEAM.

In order to contextualize the judgment, it is imperative to deliberate upon Section 15 of the POCSO Act, which was introduced into the Act via an amendment in August 2019. This section criminalizes various degrees of possession of child pornography, based on the intent:

• Section 15(1): Criminalizes possession with intent to share or transmit, accompanied by failure to delete, destroy or report the material. The penalty for this offence is fine up to ₹ 10,000.

• Section 15(2): Targets possession with intent to display, distribute or propagate CSEAM. This provision addresses perpetrators involved in actively sharing and distributing child pornography, apart from reporting or using it as evidence in court. The penalty includes imprisonment of up to three years, or a fine, or both.

• Section 15(3): Deals with possession of CSEAM for commercial purposes, who seek to profit from the exploitation of children through the sale or distribution of child pornography. The penalty includes imprisonment of up to seven years, or a fine, or both.

In this judgment, the Hon’ble Supreme Court found that the various subsections of Section 15 of the POCSO Act had conflicting interpretations across various High Courts, including High Courts of Madhya Pradesh, Madras, Kerala and Bombay. The contradictions in High Court judgements largely centred around the interpretation of intent — whether the accused intended to distribute, transmit, or use the material for commercial purposes. The Hon’ble Supreme Court noted that none of these rulings adequately addressed the issue of consumption of CSEAM online without downloading, a gap in jurisprudence that the current judgment seeks to fill.

At the heart of the Supreme Court's ruling is the concept of "constructive possession," which goes beyond the traditional understanding of possession to include access and control over child sexual exploitation material, even if it is not stored or downloaded. The Court ruled that an individual’s ability to manipulate, alter, or delete CSEAM, even if accessed only temporarily, satisfies the requirement of possession under Section 15 of the POCSO Act.

The Court held that possession extends beyond merely holding the material physically. Constructive possession occurs when a person has control or access to such material, even if it's stored digitally or on a device not directly in their hands.

The apex court, while borrowing jurisprudence from the United States court ruling [U.S. V. Tucker, 150 F. Supp. 2d 1263 (D. Utah. 2001)] on constructive possession of CSEAM, has now held that a person’s control over CSEAM can be determined by whether they had the ability to alter, modify, or destroy the material. If the answer is in affirmative, the person is deemed to have constructive possession of the CSEAM, even if it was only accessed temporarily.

Immediate control, in the digital context, could mean having access to the material through a phone or computer, even if not actively viewed. The Court held that if such material is stored, and the accused chooses not to delete it or fails to report it, it satisfies the requirement of constructive possession, triggering legal consequences under Section 15(1) of POCSO Act. This interpretation aligns with the broader understanding of constructive possession, where intent and control over the material, rather than mere physical possession, determine liability. This approach broadens the scope of liability for those consuming child pornography online.

The Supreme Court's judgment raised critical concerns about the inefficiency of authorities in tackling the issue of CSEAM. However, the judgment fails to expand the scope of or pass specific directions to improve policy measures like the National Database of Sexual Offenders, maintained by the National Crime Records Bureau (“NCRB”) after the Criminal Law (Amendment) Act, 2018. This database, currently accessible only to law enforcement, tracks convicted offenders of serious sexual crimes. In comparison, countries like the United States made their sex offender registries public in 1996, helping deter further crimes. In India, where 96.8 per cent of sexual offences involve perpetrators known to the victim, expanding access to this database and providing offender information to at least the local residents and the concerned police station could provide vigilance that could act as a deterrent in order to avoid such crimes.

Moreover, the 2022 NCRB report revealed a pendency rate of 96.8 per cent for cases involving the transmission or publication of explicit material involving children. This judicial backlog reflects a larger issue in the Indian system. Setting up special courts with dedicated resources for CSEAM-related cases could accelerate the adjudication process and reduce pendency. However, the Supreme Court’s ruling is silent on the aspect of pendency as well.  Including such policy recommendations could have strengthened the judgment’s impact and paved the way for more effective enforcement of existing laws.

While the Supreme Court’s ruling is a significant step forward in clarifying the legal framework around CSEAM possession and distribution, the lack of specific policy recommendations leaves much to be desired. Addressing systemic issues like the judicial backlog or the effectiveness of existing measures such as the sexual offender database, would enhance the ruling's long-term impact. It is hoped that this judgment will motivate authorities to take cohesive action to address this evolving threat and ensure better protection for children in India.

About the authors: Shri Venkatesh is the Founding and Managing Partner at SKV Law Offices. Nihal Bhardwaj is a Senior Associate at the firm.

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