Closing the cracks

The Supreme Court's landmark judgment in Just Rights For Children Alliance vs S Harish (2024) marks a crucial step in addressing the menace of child sexual abuse material. The rise in child sexual abuse, especially the consumption of Child Sexual Exploitative and Abusive Material (CSEAM), along with its long-term psychological impact on victims, highlights the need for an evolved interpretation of key provisions within the Protection of Children from Sexual Offences Act (POCSO), a comprehensive law aimed at safeguarding children.

The judgment's findings can be divided into two key parts: [A] Substantive and binding interpretations of law and [B] obiter dicta: recommendations for effective implementation.

Substantive and binding interpretations of law

Possession of CSEAM inherently includes viewing, including over the Internet

When an individual is found possessing or storing CSEAM, they are typically charged under Section 15(1) of the POCSO Act and Section 67-B of the Information Technology Act. Section 15(1) classifies possession or storage as an inchoate offense, punishable only if the individual intends to share the material and fails to delete, destroy, or report it. Section 67-B covers a broader range, including even browsing such content. If the accused engages in additional actions like transmission or distribution, Section 15(2) applies, carrying stricter penalties. For commercial purposes, harsher punishments are imposed under Section 15(3).

Authorities have thus been relying on the combined effect of several provisions of the statutes to prohibit the 'viewing' of such content in private. However, the lack of a specific private 'viewing' offense under POCSO has posed challenges for enforcement. Another issue has been the circumvention of penal provisions, as both the POCSO and IT Acts criminalize only possession or storage, not mere online viewing without downloading or subscribing to the content, such as in the case of online streaming. Peddlers have exploited this legislative loophole, necessitating a binding court interpretation on these matters. Various High Courts have expressed differing views on the necessary elements to establish offenses under these sections, particularly regarding viewing or consuming CSEAM.

All this has led the Supreme Court to intervene in this case, referencing the 2019 amendment to Section 15, which added 'possession' alongside 'storage.' This enabled the Court to interpret 'possession' through the doctrine of constructive possession (a legal principle that a person who exerts immediate control over material without physically storing it is considered to have its possession) to hold that mere act of 'viewing' a child pornography, with substantial control over the content even online, constitutes 'possession' under Section 15 of the POCSO Act if the viewer fails to reasonably report or delete it.

The effect of this judgment is that if 'A' routinely watches CSEAM videos online without downloading or storing them, this act of viewing-with considerable control-now constitutes 'possession' under the doctrine of constructive possession. Coupled with a failure to delete or report such content, this suffices to establish the foundational facts required under Section 15(1) of POCSO for prosecution. In these cases, the Trial Court will presume (as per Section 30 POCSO) that 'A' possesses the necessary mental state regarding the offense unless proven otherwise during the trial.

Another challenge addressed in the judgment concerned the role of the accused's intention in committing an offense under Section 15. As noted, to establish an offense under Section 15(1) of the POCSO Act, two essential requirements must be met: the actus reus (failure to delete or report the CSEAM) and the 'intention to transmit or share' the content. The Supreme Court acknowledged that traces of intention may be inferred from the act of possession and surrounding circumstances, which will be crucial in determining whether the individual intended to share or transmit the material.

For instance, if 'A' receives an unknown link from 'B' and accidentally views or downloads CSEAM content without knowledge of its nature, he cannot initially be said to possess the material. However, if 'A' discovers the content and continues to view it without deleting or reporting it, this will be considered constructive possession. At that point, the law will infer intent to share or transmit based on his failure to act, fulfilling both the actus reus and intention requirements. Conversely, if 'A' cannot delete or report the material due to genuine reasons, such as a broken phone, this omission would not indicate intent to share or transmit. In such cases, the surrounding circumstances would suggest no offense under Section 15(1) of the POCSO Act.

Obiter dicta: recommendations for effective implementation

This landmark judgment is significant not only for its thorough analysis of the above provision of POCSO Act but also for tackling critical issues concerning child safety. As a guardian of child welfare, the Apex Court provides valuable recommendations to the government and stakeholders on vital aspects, along with specific directives to the courts. The Court's suggestions are as follows:

To the government:

(1) The Court highlighted the legislative gap and urged the government to replace the term 'child pornography' with 'child sexual exploitative and abusive material' (CSEAM) through an amendment or temporary ordinance. The term 'child pornography' mainly addresses the 'actual abuse' of the child and does not fully capture the crime's gravity. In contrast, CSEAM reflects the abusive nature of the content and includes a broader range of material, such as self-generated visual content, while acknowledging the far-reaching consequences like social stigma, hardships, and post-traumatic stress disorder faced by victims. Additionally, the term 'pornography' suggests legal and voluntary participation, which is inaccurate in cases involving children. The Court also directed that this term be used in judgments to better reflect the seriousness of the crime.

(2) The government should establish an Expert Committee to design a comprehensive program that provides health and sex education while raising awareness of the POCSO Act among children from an early age.

(3) The government and relevant stakeholders should implement two-fold measures to combat CSEAM: Preventative and Remedial.

a. Remedial measures: All actions related to CSEAM-viewing, consuming, storing, transmitting, distributing, or producing-must be met with effective criminal remedies. The Court also reiterated that ignorance of the law banning CSEAM is no defense to save from the liability. Besides, courts are directed to avoid leniency in such cases.

b. Preventative measures: The Court stressed the importance of encouraging governments and child protection commissions to reform education and awareness campaigns, as per Sections 43 and 44 of the POCSO Act. The need for practical sex education and awareness initiatives for children, parents, and guardians, especially in schools has been advocated by the Apex Court this time. The Court challenged the stigma surrounding discussions of sexual health and contraception, often thought to encourage youth sexual activity. Alarmed by the prevalence of misleading information that fosters unhealthy behaviours, it called for a 'positive, age-appropriate, effective sex education' program, similar to the successful Jharkhand Udaan Program. The program like this covers not just biological reproduction, but also consent, healthy relationships, gender equality, and respect for diversity. Thus, developing strategies for the early identification of at-risk individuals exhibiting problematic sexual behaviours is crucial.

To the social media platforms or allied intermediaries:

The Supreme Court highlighted the key role of intermediaries in combating CSEAM. It clarified that, beyond Sections 19 and 20 of the POCSO Act, Rule 11 of the POCSO Rules, 2020, requires intermediaries to report offenses and provide relevant material, including the source, to the SJPU, local police, or the cybercrime portal. Social media platforms that previously reported such cases only to the US-based NCMEC, which then informed the NCRB, must now report directly to the local authorities, thus improving the reporting mechanism and keeping state police involved. This essentially means intermediaries will not be entitled to claim immunity under Section 79 of the IT Act ("safe harbour provision") if they fail to comply with due diligence requirements and also if they fail to mandatorily report suspected or actual offences into their cognizance under POCSO to the local police.

To the stakeholders of society including schools:

The Apex Court stressed the mandatory reporting under Section 19 and 20 of the POCSO Act, requiring anyone aware of an offense to inform the SJPU or local police, failing which fine and imprisonment awaits. Besides, the Court also urged schools to play a critical role in early identification and intervention by implementing programs that educate students on healthy relationships, consent, respect for diversity and appropriate behaviour.

Conclusion

Consuming child pornographic content can fuel a desire for further child exploitation, revealing its serious impact. This judgment strengthens the legal framework on exploitation and abuse material. By closing legislative gaps, the judiciary has ensured stronger protections for children. The responsibility now rests on us to uphold these safeguards.

OP Singh, former DGP UP, is currently Advisor in India Child Protection at Delhi; Himanshu Dixit, an alumnus of Indian Law Institute, is a Delhi-based Advocate. Views expressed are personal