Author- Sonali Yadav from Asian Law College
To the Point
This is one of the landmark cases regarding the possession, storage and viewing of child pornography. In this case, the Supreme Court had overruled the decision of Madras High Court in which it quashed the charge sheet. It was held by the court that mere possession or viewing of child sexual exploitative content without transmitting it, also constitutes an offense under the Indian law. It later clarified that Section 15 sub‐sections stand independently, and adopting the term “Child Sexual Exploitative & Abuse Material (CSEAM)” instead of “child pornography” is essential. It was one of the cases which redefined the laws related to child pornography in India and also made essential changes through the judgment. The judgement was delivered by the two judges bench named as former Chief Justice of India D.Y. Chandrachud and Justice JB Pardiwala. They emphasize on the rights and dignity of the children in order to protect them from sexual exploitation and other kinds of offences.
Abstract
On 29th January 2020, the Chennai Police Station received the information or report regarding the Cyber Tipline from the National Crime Record Bureau. On behalf of this, the police registered the FIR against the S. Harish for acquiring child pornography. When the investigation began, the number of videos or content was found in the possession of Harish and those videos were related to the children which were missing for a long time and sexually exploited. After this, in 2023 Harish was charged under section- 15(1) of the Protection of Children from Sexual offences Act,2012 (POCSO) Act and section-67(b) of the Information and Technology Act, 2000 (IT) Act. A coalition of NGOs, led by Just Rights for Children Alliance, appealed a Madras High Court order that dismissed charges against S. Harish for possessing child pornographic material. The apex court reinstated the prosecution, underscoring that possession alone especially without deletion or reporting reflects intent under Section 15(1) POCSO. It held that the IT Act’s Section 67B likewise criminalizes mere downloading or viewing. The judgment also emphasized the advisory to substitute “child pornography” with “Child Sexual Exploitative & Abuse Material” (CSEAM), advocated education about POCSO, and clarified intermediary liability under Information Technology (IT Act), 2000.
Use of Legal Jargon
Inchoate Offense: Offense anticipatory in nature where readiness or preparation suffices. Section 15 of the POCSO Act, 2012 which deals with the punishment for possessing child pornography that doesn’t require distribution; possession with intent is enough.
Mens Rea & Actus Reus: The actus reus, mere possession and storage of the child pornographic material combined with mens rea, where intention of keeping it as failure to delete or report about the content to the particular authority qualifies as crime. These grounds are sufficient for the further proceedings and investigation.
Statutory Presumption (POCSO): Once the possession of the child pornographic content is proven in the court of law then the intent is presumed due to which the burden of proof is shifted to the accused to prove him innocent.
Constructive Possession: Possession that includes knowing control of digital material if it is not in a physical possession of the accused or charged person. It is one of the crucial concepts in the child pornographic matter.
Safe Harbour vs Due Diligence (IT Act): Intermediaries must proactively remove or report “Child Sexual Exploitative & Abuse Material” CSEAM, not just rely on protections of immunity. It is a famous phrase which shows the comparison between the two legal concepts in relation to the Information and Technology Act, 2000.
Terminology Shift – CSEAM: Recommended legal terminology change emphasizes exploitation over pornography. The shift is made to highlight the abusive content rather than any other thing to protect the children.
Section 15(3) – This section punishes those who are storing or possessing the child ponographic content for the business or commercial purposes.
Section 15(2) – This section penalizes the actual transmission, probation, display or distribution of child pornographic material.
The Proof
FIR & Charge Sheet: FIR registered under section-67B IT Act and section-15 “Child Sexual Exploitative & Abuse Material” (POCSO) Act,2012 after a CyberTipline report. Over 2 years, the accused retained digital CSEAM without deletion or notifying authorities.
High Court’s View: The High Court of the Madras while quashing the proceedings against the S. Harish said that mere possession or viewing without transmission didn’t violate law as there was no transmission of such content.
Reasoning given by the Supreme Court of India:
Possession and Failure to Delete: This act Indicates the intent to disseminate as well as making section- 15(1) of the “Child Sexual Exploitative & Abuse Material”POCSO Act,2012 applicable in this case.
Section 15 Interpretation: The court reasoned each subsection is self-sufficient possession, transmission, and commercial intent are independently penalized under the Indian law.
Application under section 30- This shows the rebuttable presumption of the malicious intention of the accused once the possession of the content is shown.
Information and Technology Act,2000- Section-67 B of the Act, explicitly defines the punishment for viewing, downloading child pornographic content even if there is no transmission of it.
Case Laws
1 . Avnish Bajaj v. State of Delhi (2008)
Case Summary- This is one of the landmark cases that imposes criminal liability for the online content. In this case, Avinash Bjaj, the CEO of baazee.com now (eBayIndia) was charged under sections 67,67A, 67B, of the Information and Technology (IT) Act,2000, section- 292 of the Indian Penal Code (IPC), etc. who has uploaded the obscene material on the website without the consent of such an individual and due to this he is charged under these provisions. The court held that he was not guilty of the offenses under these provisions as this type of content is uploaded by many persons not only by him. He was only the CEO of the website not actively uploading such content on the website. The court added that the section-79 of the Information and Technology Act,2000 which provides immunity from the criminal liability for the third-party content.
2. Kailash v. State of Rajasthan (2020 )
Case Summary- In this case, the accused was charged under section- 13,14,15 of POCSO Act,2012 (use of child for pornographic purpose), section- 67B of the IT Act,2000 (publishing sexually content involving children) and section- 376 IPC. 1860 (Rape). The Rajasthan High Court held that the act amounted to rape and also attracted several provisons of the IT Act due to which his bail was denied and also highlights the seriousness of the child pornographic and sexual exploitation of children. It also emphasizes on protecting the child rights and dignity over such heinous crimes in the society and ensuring that perpetrators may face the stringent legal consequences.
Conclusion
Child pornography is a grave violation of the fundamental rights of children, including their right to dignity, privacy, and protection from abuse. In India, while significant legislative steps have been taken such as the enactment of the Protection of Children from Sexual Offences (POCSO) Act, 2012, and provisions under the Information Technology Act, 2000- the problem persists due to the digital nature of such crimes and lack of awareness, timely reporting, and enforcement gaps. It strengthens child protection in cyberspace, clarifies legal terms and frameworks, and nudges legislative reform in line with international standards. The ruling demands proactive compliance from individuals, intermediaries, and institutions, reinforcing societal responsibility toward safeguarding children. While the legal and institutional framework exists, effective implementation, victim centered approaches, and technological vigilance are essential to ensure a safer digital environment for children in India. The focus must shift from merely punitive measures to preventive, rehabilitative, and restorative justice mechanisms.
FAQs
Q.1) Does mere viewing of child exploitative content constitute an offence?
Ans- Yes, if the material is stored anywhere without deletion or reporting of such content causes constructive possession, triggering offence under section- 15(1) POCSO and section- 67B IT Act.
Q.2)What if material was viewed unintentionally (e.g. clickbait)?
Ans- Accidental viewing helps rebut mens rea. However, retention without deletion or reporting invokes statutory presumption under section- 30 POCSO, unless convincingly disproved.
Q.3)Why change terminology to CSEAM?
Ans-To shift perception from consensual “porn” to exploitative “abuse material” now highlighting the seriousness and abolishing euphemism.
Q.4)Are intermediaries liable under the IT Act?
Ans- Yes. Under section- 79 of the IT Act, 2000, platforms must proactively remove or report CSEAM.
Q.5)How does statutory presumption in section- 30 POCSO affect accused?
Ans- If the possession is shown then the intent is presumed. And then the burden shifts to the defense to prove lack of mens rea requiring credible rebuttal evidence.
Q.6)Is this judgment applicable nationwide?
Ans- Yes. It’s a Supreme Court precedent. All High Courts and lower courts must follow it. It also guides law enforcement and educational institutions in implementing best practices.
References
https://www.dhyeyalaw.in/just-rights-for-children-alliance-v-s-harish
https://www.drishtijudiciary.com/landmark-judgement/special-acts/the-protection-of-children-from-sexual-offenses-act/just-rights-for-children-alliance-v-s-harish
https://www.scobserver.in/journal/supreme-court-holds-that-viewing-storing-and-possessing-child-pornography-is-punishable-under-pocso-act-overturns-madras-hc-decision/
https://www.casemine.com/commentary/in/comprehensive-commentary-on-just-rights-for-children-alliance-v.-s.-harish-(2024-insc-716)/view
