What is the recent judgment of the Supreme Court where it has interpreted mere viewing of child pornographic material to fall within the scope of Section 15 of the Prevention of Children from Sexual Offences Act?.—.ON September 23, 2024 the Supreme Court delivered its judgment in Just Rights for Children Alliance versus S. Harish. In the judgment, the court has decided on several questions of law on the subject of child pornography..Notably, in the judgment, the court has included the act of mere viewing of child pornography material within the scope of Section 15 of the Prevention of Children from Sexual Offences (POCSO) Act..In the judgment, the court expands the scope of the term "possession", as used in the Section to include the doctrine of "constructive possession". Expanding the term thus implied that it is not merely the physical or tangible possession of child pornography material that would constitute the actus reus for Section 15 but also instances where one may exercise control over such material. This would include even mere viewing of child pornography material over the Internet..This post unpacks the court's reasoning that leads to the criminalisation of viewing child pornography material over the Internet..Constructive possession and its application to child pornography material.With regard to the issue of viewing child pornography material, the court has utilised a four-step reasoning. First, it finds that the offence under Section 15 of the POCSO is an inchoate offence..“The court expands the scope of the term "possession", as used in the Section to include the doctrine of "constructive possession"..Second, it reasons that the doctrine of "constructive possession" is an important element of the jurisprudence of inchoate offences. Third, since Section 15 is an inchoate offence, its scope should be enlarged to include the doctrine of constructive possession..Finally, since constructive possession includes intangible possession within its scope, it would also include the act of mere viewing of child pornography material..Let us break down this reasoning. The court interpreted "constructive possession" to include cases where an individual is not in physical possession of contraband but has the power and intention to control the contraband..Also read: Watching child pornography in private is not an offence, says Madras High Court.In the context of child pornography material, the court has categorised the possession of such material into two categories. First, where there is a "physical or tangible" possession, and second, where there is an "intangible or constructive possession"..One would infer that when child pornography material is downloaded on a device, it would constitute tangible or physical possession, and where the child pornography material is viewed over the Internet, not through a file downloaded on a device, it would constitute intangible possession..Having included both these within the scope of Section 15, the court arrived at its judgment that mere viewing of child pornography material over the Internet would also constitute an offence under Section 15..In this interpretative exercise, however, the very essence of the doctrine of constructive possession has been lost. In order to establish constructive possession, two essentials must be established. First, power or control over the contraband in question, and second, the intention to control the contraband..The court has acknowledged these two factors as the constituent elements for establishing constructive possession. However, in the context of Section 15, even if the scope of "possession" is enlarged to encompass "constructive possession", one fails to understand how it would include within its scope the act of mere viewing of child pornography material over the Internet..“The management of a file should be the test to determine control over the contraband, in this case, the child pornography material..The fundamental act of use (private use or viewing) of child pornography material has been left outside the scope of the Act..To establish constructive possession, power or control over the contraband must be established, which in the present case seems missing. In its judgment, the court has sought to establish the element of power and control by reasoning that an individual viewing child pornography material over the Internet enjoys the power to enlarge the child pornography material, share or delete the material; therefore, the person exercises a "considerable degree of control" over the child pornography material..This, however, is an excessive stretch of the notion of control under this doctrine. Note that the actions mentioned by the court, (with the exception of deleting) are merely incidental functions to running an audio/video file. Constructive possession implies the power to control and manage, to the exclusion of others, as held in Mohan Lal versus State of Rajasthan..Therefore, the management of a file should be the test to determine control over the contraband, in this case, the child pornography material. Functions such as enlarging or increasing volume are only modes and manners of using a file, they cannot not constitute a test to establish control..The court has also mentioned the power to delete child pornography material as constituting control. The power to delete is a powerful test to establish control. However, in the context of viewing child pornography material over the Internet, the viewer enjoys the power to mere viewing, i.e., access the material, without the power to delete it..Also read: Pornography, populism and the rape culture.Further, seeking to strengthen its conclusion, i.e., that viewing child pornography material falls within the scope of constructive possession, the court cites two cases from the United States— US versus Tucker and US versus Romm..The purpose of citing these cases in the judgment was to ease the conclusion that viewing child pornography material over the Internet would fall within the category of constructive possession. Interestingly, however, in both these cases the impugned child pornography material had been viewed after its download..In US versus Tucker, the child pornography material was viewed from cached files. In US versus Romm, the child pornography material was downloaded, saved into a disk and then deleted. Notably, in both cases the files were stored locally, even if temporarily, thus giving rise to constructive possession leading to conviction..Therefore, the precedents cited fail to establish the conclusion that viewing child pornography material over the Internet falls within the scope of constructive possession..Legislative intent and policy on child pornography.The court has taken note of India's relevant laws tackling the menace of child pornography material..“The court arrived at its judgment that mere viewing of child pornography material over the Internet would also constitute an offence under Section 15..These include Section 67B of the Information Technology Act, 2000 and Chapter III of the POCSO Act, specifically Sections 15 and 30 of POCSO. While the court has noted that the Indian legislature is responsive to child pornography material, it has failed to appreciate a more nuanced policy stance on the issue..India's policy on child pornography material has been to prevent and prohibit the sharing and propagation of such material. Despite numerous opportunities to amend relevant laws, India has maintained a consistent policy of regulating only the sharing and propagation of child pornography material. Child pornography material laws have consistently steered clear of criminalising the mere act of viewing such material. A study of the legislative history of child pornography material law in India establishes this point..The Information Technology Act, introduced in the year 2000, provided the earliest means of regulating child pornography material in India. Section 67 of the erstwhile Act criminalised the act of publishing obscene material in an electronic form..In 2007, the IT Act was revamped in light of emerging online crimes. Section 67B was introduced into the Act through the amendment. Section 67B seeks to punish the creation and publication of child pornography material in addition to criminalising the act of enticing or inducing children to commit a sexually explicit act..Also read: POCSO and judicial scrutiny of victim's evidence: Is the burden of absolute consistency too high?.Later, in 2012, a need arose to draft a specific law for the protection of children from sexual offences, giving rise to the POCSO Act. Section 15 of the erstwhile act criminalised the storage of child pornography material for commercial purposes..In 2019, the scope of Section 15 was widened by introducing two new clauses to the Section. While Clauses (1) and (2) penalised the storage or possession of child pornography material with an intent to share or propagate it, Clause (3) penalised storage or possession for commercial purposes..Tracing the legislative history of child pornography material law in India, and in light of the bare text of relevant provisions, one can arrive at the conclusion that the policy on child pornography material has sought to consistently prohibit the propagation and spread of child pornography material..Section 15 of the POCSO Act penalises the storage or possession of child pornography material only when the actus reus is coupled with the intention of spreading or propagating the same..In the context of the IT Act, a wide number of acts related to child pornography material have been criminalised, including the creation or recording of such material, and inducing a child to partake in sexual activity..However, the fundamental act of use (private use or viewing) of child pornography material has been left outside the scope of the Act..“The fundamental act of use (private use or viewing) of child pornography material has been left outside the scope of the Act..The court takes note of the legislative developments in this field, yet fails to appreciate this nuanced policy position. Paragraph 113 of the judgment reads:."We believe that the change referred to above [the legislative history] was not made inadvertently or lightly, but rather was done specifically with the intention of making the provisions of Section 15 of the POCSO Act more stringent to effectively deter the dissemination and use of child pornography.".Note that the court has stated that the changes in the law were introduced to deter the dissemination and use of child pornography. Undoubtedly, the amendments to Section 15 have sought to control the dissemination of child pornography. However, there is no material to indicate that the laws have been made stringent to deter the "use" of child pornography, or more specifically, its private use.
