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Sept 25, 2024
SUPREME COURT’S LANDMARK RULING ON CHILD PORNOGRAPHY
In a significant judgement of the case Just Rights For Children Alliance Vs. S. Harish, the Supreme Court of India addressed the interpretation of “possession” under Section 15 of the Protection of Children from Sexual Offences Act (POCSO). The bench, overturned a Madras High Court ruling that had quashed criminal proceedings against an accused in a child pornography case. The Court made it clear that the failure to delete, destroy or report child pornographic material can infer culpable mental intent. This is a step closer to ensuring that the issue of Child Sexual Abuse Material (CSAM) is taken seriously and expands the legal definition of “possession.”
QUESTION RAISED
These issues emerged in an Appeal filed by Just Rights for Children Alliance made up of several NGOs expressing concern over interpretation of the law and its implications on children. The case centred around an accused who allegedly downloaded pictures and videos showing children engaging in pornographic acts on his phone, and this was established through forensic examination. The Madras High Court had earlier stated that downloading and viewing child pornography without distributing it does not constitute an offense under Section 67B of the Information Act (IT) 2000.
The petitioner worried that such a ruling could create a child pornography rush as it would create an impression that it is safe to behold this breed of content since there will not be criminal consequences for doing so. The clarifications made by the Supreme Court in this set of circumstances however stresses that people are also mandated to remove and report child pornography even if it is not saved or sent.
HIGH COURT’S “EGREGIOUS ERROR” IN QUASHING PROCEEDINGS
In an earlier judgment of the Madras High Court, the Supreme Court dissociated itself by stating that the High Court’s ruling was an “Egregious Error” regarding quashing the criminal proceedings. The High Court had held based on the facts that the accused had merely downloaded the said material to his computer once for his private use rather than disseminating it. However, the Supreme Court clarified that possession, under Section 15 of the POCSO Act, does not require transmission or distribution to be punishable.
The Court underlined that the offence is complete even where the individual is only in possession of child pornography, or stores it in their private residence, but does not inform prosecution authorities. The judgment elaborated that even if the contents had been erased prior to the registering of an FIR, the offence of Section 15 may still be established if it can be shown at the possession or storage at any point of time.
INTERPRETATION OF “POSSESSION” AND “STORAGE”
The judgment further stated that possession or storage under section 15 is not a prerequisite to the lodging of the FIR. If such a person had ever stored or possessed even simply various child pornographic materials, such an offence could be proven. The Court highlighted the risks brought about by the deletion of content prior to the filing of FIR in that some people will ensure that they delete that content (any) especially when what they have done can attract criminal liability.
For example, the Court gave an example, imagine if a physically healthy man – a child pornography addict – collected and stored child pornography on his computer.
DOCTRINE OF CONSTRUCTIVE POSSESSION
One of the important aspects of the statement of the judgment was the introduction of the concept of the “Doctrine of Constructive Possession.” This doctrine allows a possession to be deemed even in the absence of an actual physical possession due to the enforcement of the power and the purpose of controlling the illegal items.
On the other hand, the Court explained that where ‘A’ clicks a link sent by ‘B’ that has child pornography without knowing what the link is, ‘A’ cannot be held responsible unless he continues to engage with the material after knowing its contents. This is constructive possession because ‘A’ would have intent over content as he is willingly exposing himself to it, irrespective of its nature.
OBLIGATION TO REPORT AND NON-REPORTING
The issue of child pornography was raised by the Justice when it comes to the necessity of reporting in instances when child pornography is inadvertently accessed. Some people may argue that even if she clicks on child pornography links by mistake, and then closes the link, they are absolved of liability unless they go to the law enforcement agencies and report what happened. To hide oneself from criminal prosecution, one often resorts to ‘violating’ the law, but in this case, it would involve Section 15(1) of the POCSO Act, wherein omission of an act is defined as needed actus reus.
The judgment goes further in that there is no action made if a person just clicks the link to bin and does not use such material without intending to delete or destroy it. It is important to assure reporting of the exposure of the individual to pornographic materials, especially to children – and do so to the proper authorities.
OBSERVATION
The interpretation of “possession” and “storage” as defined under section 15 of the POCSO Act is challenged further by the Supreme Court ruling in this case. The Court further asserted that possession of child pornographic material is established if that person has control of that material either physically or constructively. The Application of the Doctrine of Constructive Possession protects those persons who watch pornographic materials on the internet but do not keep the material in a storage space.
This judgment should act as a wakeup call, as it brings out the need for adequate and stringent laws and their implementation in respect of child abuse imagery. It also emphasized the need for changes to be made in the law to bring it towards the changing times, calling on the Parliament to substitute the phrase “child pornography” with “child sexual exploitative and abusive material.” There are various other provisions made in this landmark decision that help to protect children against sexual abuse while at the same time shifting the burden of responsibility from the institutions to individuals.
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