The Supreme Court's Criminal Law Explainers in Just for Rights

[This Blog Post touches upon a sliver of the issues raised in the judgment. For a much fuller discussion, albeit where the author ultimately disagrees with some of the conclusions in the judgment, see here]

In a lengthy and erudite judgment titled Just for Rights Children Alliance & Anr. v. S. Harish & Ors. [2024 INSC 716 ("Just for Rights")], the Supreme Court clarified that the possession of child pornography can amount to an offence under the law, specifically under the Protection of Children from Sexual Offences Act 2012 [POCSO] and the Information Technology Act 2000 [IT Act]. I say clarified, as there was a divergence of opinion on this issue in the High Courts which the Supreme Court has now put to rest.

The facts, then. A man, the Respondent S. Harish, was reported to the Police as his name appeared in the Cyber Tipline Report coordinated by NCRB as someone who may have viewed / downloaded offending content on his phone. An FIR was registered and a chargesheet was filed, but while the FIR was under Section 14 POCSO the chargesheet was under Section 15 POCSO and Section 67B of the IT Act. The chargesheet was challenged before the Madras High Court which quashed the case, and this judgment was challenged before the Supreme Court in Just for Rights.  

The Madras High Court proceeded upon the erroneous view that offences under Section 14 POCSO were involved in ignorance of the chargesheet. Further, it construed Section 67B of the IT Act incorrectly, as it failed to look at the full clause before concluding that Section 67B did not punish watching such content — a finding evidently contrary to Section 67B(b). The Supreme Court could have set aside the judgment on these narrow grounds alone, but it did not, and decided to engage with the High Court's view (taken by some other High Courts earlier) that the mere possession of child pornography content cannot be a crime even under Section 15 of POCSO. 

The issue arose because of the peculiarly worded nature of the provision in question. While the marginal note says "punishment for storage of pornographic material involving child", the clause itself does not per se criminalise only storage. Amended in 2019, the provision states:

(1) Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable ...

(2) Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished ... 

(3) Any person, who stores or possesses pornographic material in any form involving a child for commercial purpose shall be punished ... [Emphasis supplied]

What Section 15 did, was dispel any doubts that it was not a strict liability offence. In other words, it did not punish merely being found in possession of offending material. Instead it required the possession to be accompanied by an intention to share or transmit such material for the base offence, and prescribed even higher standards of intention for the other offences under sub-clauses (2) and (3). 

Technically speaking then, a view that mere possession of such material is not a crime under Section 15 was arguably correct. This view is what the Court seeks to address. The analysis begins by drawing upon the legislative history of Section 15 and the POCSO to justify the view that parliament actually intended to criminalise mere possession. I am not so sure. If this was the intention of parliament, nothing stopped it from adopting the clear language of Section 67B of the IT Act, which when juxtaposed with Section 15 POCSO shows what a crime which punishes pure possession can look like. If anything the Court may have dealt with more extensively on how to harmonise these two sets of clauses, with entail not only different procedural regimes but different potential punishments for the same offence. This multiplicity of crimes for the same act is an issue which the Court appears to have left for another day, which will hopefully come soon enough considering just how often the issue is coming up for consideration.

It is the next section, where the Court breaks down the terms of Section 15 POCSO, that it makes its most convincing case to remind us that even statutes which may appear to not create strict liability crimes by criminalising mere possession can, in fact, operate to achieve precisely these objectives.

The late Prof. William Stuntz explained it with his usual lucidity more than two decades ago in the context of federal white-collar crime in the United States, and while he is not cited in Just for Rights it is the same idea which the Supreme Court has turned to. Look at Section 15 again. Sure, it prescribes an intention, but how does one prove such an intention, and more importantly when does one prove such an intention? It is all a matter of inference, in which the key fact would remain the fact of possession. Whether it was 'mere' possession, or 'criminal' possession, would in this reading become a matter for investigation and trial. In other words, where offences prescribe extremely minimal conduct requirements, along with traditional components requiring the proof of a mental element, they create de facto strict liability crimes which give vast powers upon the police to enforce the law and leave the messy questions of proof to trials. 

The justification for having such crimes is usually found in the subject-matter they deal with. Section 15 is no exception, as there is a broad consensus that child pornography is per se without any redeemable value for a harsh legal measure to be in place. The Court in Just for Rights highlighted this, and also highlighted that such an approach is not 'unduly' harsh inasmuch as a person with a sound defence would always have a chance to prove their innocence even if found in possession of the offending content. The discussion, with its multiple examples, should prove helpful for courts and police to apply the section with a measure of fairness.