Supreme Court Review 2024: A progressive year for child rights

In 2024, the Supreme Court decided several cases to advance child rights jurisprudence in India. From clarifying the application of certain provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) to tightening the Juvenile Justice (Care and Protection) Act, 2015 (JJ Act), it laid to rest some confusions that had long bothered litigators. Significantly in a year that saw increased communal polarisation and persecution of minority communities, the Court intervened at important moments to favour children from such communities.

One decision of the Court, however, did raise conflicting thoughts. It highlighted the tension inherent in state paternalism and child autonomy.

The Court resolved long-pending ambiguities in POCSO

Since its initial enactment in 2012, High Courts have undertaken contrasting interpretations of provisions of the POCSO Act. One such provision is Section 15, which lays down the punishment for the storage of pornographic material involving children. Another provision that criminalised the publishing or transmitting of material “depicting children in sexually explicit acts etc., in electronic form” was Section 67B of the Information Technology Act, 2000. 

Despite these two provisions, High Courts were unable to come to a consensus on whether ‘mere possession’ of child sexual abuse material (‘CSAM’) was per se unlawful or not. The High Courts of Madhya Pradesh, Bombay, Madras and Kerala had ruled that as long as the CSAM was voluntarily downloaded, it did not matter if the accused was the producer or not—Sections 15 and 67B squarely applied to them. 

But a series of judgements of the Kerala HC earlier this year strayed from this line of reasoning. They noted that for Section 15 to be attracted, there should not only be “storage or possession” but that the CSAM should be shown to have been “shared or transmitted” by the accused. In one judgement, the Karnataka High Court quashed criminal proceedings and said that “even investigation should not be permitted.” In S Harish (2024), the Madras HC quashed the proceedings against an “active consumer” of CSAM. This last matter went to the Supreme Court on appeal this year.

In a judgement authored by Justice J.B. Pardiwala, the Court clarified that Section 15 outlined three separate offences: (i) the “failure to delete, destroy or report” CSAM in possession of the accused, (ii) actual transmission or propagation and (iii) storage or possession with commercial intent. So an individual user who intentionally downloads and watches CSAM within a private space would also be charged under POCSO under Section 15(1). The Court also noted that Section 67B penalises both electronic dissemination and possession and consumption of CSAM. 

In a similar vein, the Court overturned another judgement where the Rajasthan High Court had quashed an FIR against a school teacher who had sexually harassed a minor student on account of an out-of-court compromise between the parties. The High Court had relied on the Supreme Court’s judgement in Gian Singh (2012), where the Court had held that where a compromise is possible between “two warring groups”, the Court should “endeavour to give full effect to the same.” But, in Ramji Lal Bairwa (2024), the Supreme Court held that ‘sexual assault’ under Section 7 of POCSO cannot be imagined as a private offence in the way a compromise would close the proceedings.

Another provision of POCSO that had been subject to some mischief was Section 33(5), which puts a duty on Special Courts to ensure that child victims are not repeatedly asked to appear before the court to give testimony. POCSO lawyers and activists often go out of their way to ensure that victims are not unnecessarily cross-examined and made to relive their traumas repeatedly while skipping school. In Madhab Chandra Pradhan (2024) in August 2024, a bench of Justices Sudhanshu Dhulia and Ahsanuddin Amanullah clarified that while Special Courts can deploy discretion under Section 33(5), the recall of victims “should not be allowed as a matter of course.”

Plugging gaps in the JJ Act

Three important judgements this year supplied more clarity around the JJ Act’s implementation. Firstly, in April 2024, the Court in Rahul Kumar Yadav clarified that a plea of juvenility can be raised at any stage of proceedings. Under Section 9(2) of the Act, if an accused claims before a court that he was a juvenile at the time of the offence, the Court must conduct an inquiry based on medical evidence and determine the age of the accused. 

In Bihar, a boy accused of murder and sentenced to death had raised repeated pleas that he was a juvenile at the time of the offence—twice in district courts and once in the High Court. When he raised the same plea in the Supreme Court, the government counsel objected that it was too late in the trial to claim juvenility. But the Court disagreed and allowed his plea of juvenility eleven years after he was awarded the death penalty. The SC said that there could not be a “hyper technical” approach in such cases.

In May 2024, a bench of Justices C.T. Ravikumar and Rajesh Bindal papered over an interpretive hole in the JJ Act. In Child in Conflict with Law through his mother, the Court ruled that the terms ‘Children’s Court’ and ‘Court of Sessions’ in the JJ Act have to be read interchangeably. While this may appear as a minor semantic clarification, it is of consequence to child rights litigators. Consider for instance Section 101(1) of the Act: while decisions of the Juvenile Justice Board or Child Welfare Committee can be appealed before the Children’s Court, condonation in case of delay can only be sought from the Sessions Court. The Court’s clarification means that the designated Children’s Court in the district is not only the forum for appeal but also the forum to apply for condonation of delay.

The same judgement also provided a clear timeline for filing appeals against faulty preliminary assessments by the JJB. Under Section 15 of the JJ Act, if a young person between the ages of 16 and 18 is accused of a heinous crime, then the JJB must conduct a ‘preliminary assessment’ of his mental capacity to understand if he should be tried as an adult. While Section 15(2) recognises the right to appeal the JJB’s decision, the legislation does not prescribe a timeline. The Supreme Court has now clarified that this appeal has to be filed within 30 days, and the appellate body can condone any delay if “sufficient cause” is shown.

A judgement reignites debate on a minor’s autonomy

In August, in In re: Right to Privacy of Adolescents, the Court overturned a decision where the Calcutta High Court quashed the conviction of a POCSO accused who was convicted of kidnapping and rape. The case background raised an interesting question. In rural West Bengal, a man of 25 and a minor girl fell in love, eloped and married. When they were found, the boy was charged under POCSO and sentenced to imprisonment. The girl was pregnant at the time. During the hearing, the judges encountered the woman, in near “destitute” condition, standing in a corner of a courtroom. She revealed that she wanted her husband to be released from prison. In a judgement, admittedly dotted with legal errors (such as holding that consensual relationships were an exception to POCSO offences), the HC quashed the husband’s conviction using its inherent powers under Section 482 of the Criminal Procedure Code. 

The High Court also made headlines for passing patriarchal remarks about how ‘female adolescents’ needed to control their ‘sexual urges.’ The Supreme Court chastised the High Court for it. While restoring the man’s conviction, it noted that a “romantic relationship” did not make an exception to a POCSO offence. 

But with everything said and done—what if the minor girl expressed desire to stay with the husband? The case brought to the fore a testy debate that plagues child rights law—to what extent can the paternal state undermine the minor’s autonomy? Practitioners routinely face situations where the CWC takes decisions on institutionalising POCSO victims, particularly from marginalised backgrounds, against their will. While the Court formed an Expert Committee to ensure that the ‘informed view’ of the victim is considered during her rehabilitation, it is yet to be seen to what extent her wishes can be fulfilled. 

How should social media platforms report ‘child pornography’ to the police?

For years, social media platforms have enjoyed the protection of the ‘safe harbour clause’ in the IT Act. Section 79 states that “an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by them.” In 2019, a Memorandum of Understanding was signed between the National Crime Records Bureau, and the National Centre for Missing and Exploited Children, a US-based NGO. According to this MoU, all social media intermediaries based in the US must first report cases of CSAM on their platforms to the NCMEC, which then tips the NCRB. The NCRB conveys the information to state authorities through the national cybercrime portal. 

But Section 19 of POCSO mandates that intermediaries forward information about such incidents to the local police or the Special Juvenile Unit. In S. Harish, the Court noted that while intermediaries were forwarding cases to NCMEC, they were not reporting cases to the Indian authorities. It stated that if intermediaries don’t “immediately” take down CSAM content after being notified by the government, their ‘safe harbour’ protection would lapse.

Intermediaries, on their part, claim that they can’t share their data with local law enforcement outside the US. Even if they could, there is no infrastructure in place in India for reporting such cases—we don’t have a centralised platform like NCMEC in India. Given that the Court has not provided details of what kind of infrastructure has to be put in place for such reporting, the ball is now in the executive’s court.

The Court stepped in for children from minority groups

In August 2023, a viral video surfaced of a government school teacher in Muzzafarnagar instructing students to slap a seven-year-old Muslim boy. The teacher was also heard passing derogatory communal remarks. A bench of Justices A.S. Oka and Ujjal Bhuyan monitored the case regularly throughout the year. They appointed the Tata Institute of Social Sciences to frame recommendations on counselling the children involved in the incident and to counsel the victim. 

The Court also pushed the state to fully sponsor the young boy’s education in a private school and followed up on the investigation against the teacher who has been charged under the Indian Penal Code and Section 75 of the JJ Act (which provides the punishment for cruelty to a child). On 12 December 2024, the Court gave the UP government six weeks to show what measures it will take to effectively implement the provisions of the Right to Education Act that prohibit punishment and discrimination.

In another case from UP, the Supreme Court overturned an Allahabad High Court judgement that had struck down a legislation that regulates registered Madarsas. The High Court had ordered Madarsa students to be accommodated in regular schools while noting that the legislation was “unsecular” because it promoted “different type of education to children belonging to different religions”. 

Annually, more than 20 lakh Muslim students enroll into Madarsas around the country. Though underfunded and neglected by the State, Madarsas are crucial sites for imparting education and preserving religious culture. Ironically, it was the National Commission for Protection of Child Rights which had sparked the present litigation, arguing that the “quality of education” in Madarsas was sub-par and a violation of the children’s right to education under Article 21A. 

In one of his final judgements before retirement, CJI Chandrachud overturned the Allahabad High Court’s dictum. His opinion noted that the UP law struck a balance between the right of minorities to establish educational institutions and the state’s obligation to ensure a standard in the education imparted in Madarsas. The opinion also clarified that the RTE Act excluded Madarsas from the purview of Article 21-A. The only part of the state law that was held to be unconstitutional was the provisions dealing with the Fazil and Kamil exams, which are equivalents of Bachelors and Masters degrees. This was on the ground that the University Grants Commission Act exclusively deals with higher education.