Just Rights for Children Alliance v S Harish: CSEAM and Online Possession

What the Supreme Court was reviewing

The case arose after the Madras High Court quashed criminal proceedings concerning sexually explicit material involving children. The High Court's approach treated the alleged conduct as outside the relevant offences in ways the Supreme Court found legally unsustainable. The appeal required close interpretation of the Protection of Children from Sexual Offences Act, 2012, and the Information Technology Act, 2000, rather than a general moral statement about internet use.

Justice J.B. Pardiwala authored the judgment on a bench with Chief Justice D.Y. Chandrachud. The decision explains the relationship between acts, possession, intention and proof. Its summary at paragraph 222 is especially useful, but it must be read alongside the statutory language and the discussion of foundational facts. The case is not authority for dispensing with evidence or treating an allegation as a completed criminal trial.

Why the Court preferred CSEAM terminology

The Court urged the use of Child Sexual Exploitative and Abuse Material, commonly shortened to CSEAM, instead of terminology that may obscure the violence and exploitation involved. It recommended legislative consideration of terminology changes and directed courts to avoid the older expression in their orders and judgments. This reflects the recognition that such depictions concern abuse of children, not a neutral category of adult entertainment.

When describing the statutes, an explainer may still need to identify their enacted wording so readers can locate the provisions. That does not mean the Court's preferred language had already been substituted throughout the legislation on the judgment date. A recommendation to Parliament is not itself a textual amendment. This distinction preserves both the child-protective purpose of the judgment and accuracy about what the law actually said in September 2024.

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Section 15 contains three distinct offences

The Court emphasised that section 15 is not one undifferentiated offence of having an objectionable file. Its three subsections address different forms of culpable intention associated with storage or possession. The judgment characterises them as inchoate offences because liability can arise at a stage before the ultimate harmful act has been completed. The prosecution must nevertheless connect the conduct to the ingredients of the particular subsection relied upon.

Under subsection (1), the offence concerns failure to delete, destroy or report the material with an intention to share or transmit it. The Court explained that intention may be inferred from how the material was stored or possessed and the circumstances of non-deletion, non-destruction or non-reporting. Failure to act is not to be stripped of the specific intent requirement. Circumstances must sufficiently indicate an intention to share or transmit.

Transmission, facilitation and commercial purpose

Subsection (2) concerns storage or possession linked to transmission, propagation, display or distribution, including facilitation of those activities. The Court required something beyond bare storage or possession to establish the relevant conduct or facilitation. Preparation or arrangements enabling transmission or display may be significant. The statutory exceptions for prescribed reporting or evidentiary use also need to be read in their proper context rather than treated as permission for informal redistribution.

Subsection (3) concerns storage or possession for commercial purpose. Additional material or surrounding circumstances must support an intention to derive gain or benefit; the prosecution need not show that the benefit was actually realised. The judgment treats the three offences as distinct, not cumulative labels automatically imposed together on the same facts. If one subsection is not attracted, investigators and courts should examine whether another applies instead of immediately concluding that section 15 is irrelevant.

Constructive possession and online control

Physical storage on a phone or computer is not the only form of possession recognised by law. The Court applied the concept of constructive possession where a person exercises the relevant degree of control over material even without maintaining a downloaded local file. Internet access therefore cannot be analysed solely by asking whether a file was saved to a device's visible gallery or downloads folder.

Control and the circumstances of access remain important. The judgment should not be paraphrased as holding that any unsolicited appearance of an image proves every element of an offence. A forensic and factual inquiry may examine deliberate access, the ability to control the material and conduct surrounding it. Possession is one part of the analysis; the intent or additional conduct required by the relevant provision must still be addressed rather than assumed from technical contact alone.

Section 67B of the Information Technology Act

Section 67B has broader operative language than a simple prohibition on uploading. It includes specified conduct such as collecting, seeking, browsing or downloading material depicting children in sexually explicit or otherwise prohibited ways, alongside publication and transmission-related conduct. The Court rejected an interpretation that would confine the provision to producing or publicly distributing material while ignoring the activities expressly named by Parliament.

That is why the statement that private viewing is always outside criminal law is misleading. At the same time, legal analysis should identify the precise clause, the statutory definition and the evidence supporting the alleged conduct. The different language of section 67B and POCSO section 15 cannot be collapsed into one formula. A charge under one provision does not remove the need to establish that provision's ingredients or justify a presumption that every subsection of the other applies.

Presumptions do not eliminate foundational facts

Section 30 of POCSO concerns a presumption of culpable mental state. The judgment explains that a statutory presumption operates only after the necessary foundational facts have been established. It is not a device for replacing the prosecution's entire factual case. The distinction matters where an accused disputes knowing possession, the nature of the material, the surrounding conduct or the legal relevance of a forensic finding.

The stage of proceedings also matters. A court considering quashing does not ordinarily conduct the same exercise as a trial court evaluating proved evidence and a statutory presumption. The Supreme Court's analysis preserves this procedural distinction. Describing the case as establishing automatic guilt on the basis of a seized device would therefore misstate both the evidentiary framework and the limited nature of the appellate decision under review.

What was decided about the accused

The Court set aside the High Court's quashing decision and restored the prosecution for the criminal process to continue in accordance with law. Restoration means the allegations must be dealt with through the proper process; it does not mean the Supreme Court entered a conviction after trial. The accused's liability remained a matter for adjudication on the applicable evidence and statutory ingredients.

The Court's conclusions also addressed when material may prima facie appear to involve a child, including the relevance of a prudent person's assessment and authoritative material such as forensic opinion. That discussion concerns the legal evaluation of the alleged depictions. It should never be used as an invitation for private individuals to obtain, inspect or circulate suspected abuse material in order to carry out their own investigation.

Responsible reporting without further circulation

A person encountering suspected CSEAM should not forward it to friends, journalists, workplace groups or an adviser through ordinary messaging merely to ask whether it is illegal. Redistribution can further harm the child and create additional legal risks. An appropriate report should be made through authorised police or cybercrime channels using their procedures, with minimal necessary identifying information rather than unnecessary duplication of the material.

Potential evidence should be handled under official guidance. A report can describe the account, platform, link, date and circumstances where safely available, without republishing the depiction. Anyone personally implicated or served with police process needs individual legal advice about the facts, device examination and lawful compliance. This explainer does not instruct readers to erase evidence under investigation, retain prohibited copies for private analysis, or assume that a self-described reporting purpose immunises all conduct.

Prevention, education and the limits of this explainer

The judgment also addressed prevention, education, support and the broader harms of continued circulation. Each viewing and distribution can perpetuate the exploitation represented in the material. A response focused only on the original producer misses the demand and dissemination chain that gives the abuse continuing reach. The legal framework is therefore accompanied by attention to child protection, awareness and responsible institutional practices.

This draft is limited to the decision delivered on 23 September 2024. Its metadata does not certify later statutory amendments or subsequent judicial interpretation. For a live matter, the primary judgment, enacted provisions, actual charge and procedural stage must be examined together. The central lesson is precise: absence of a physical download does not create a legal safe harbour, but criminal liability still depends on the statutory ingredients, the relevant mental element and properly established facts.

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