POCSO Expansions: Viewing/storing Child Sexual Material Penalties Post-2024 SC Ruling, Digital Evidence Chains and Marital Rape Exceptions For Minors

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POCSO expansions: Viewing/storing child sexual material penalties post-2024 SC ruling, digital evidence chains, and marital rape exceptions for minors.

Table of Contents

India’s child-protection law has been steadily expanding beyond “contact” offences to confront the realities of online abuse, child sexual abuse material, and exploitation within family structures. After the Supreme Court’s 23 September 2024 ruling in Just Rights for Children Alliance & Anr. v. S. Harish & Ors. (2024 INSC 716), the legal position is now clear: viewing, “mere” possession, and storage of child sexual abuse material can be punishable, depending on the mental element inferred from facts and statutory presumptions. At the same time, prosecutions increasingly turn on the strength of digital evidence chains—hash values, forensic imaging, metadata, platform reports, and integrity certification—making investigative discipline and procedural compliance decisive. Parallelly, the “marital rape exception for minors” has already been narrowed by the Supreme Court in Independent Thought v. Union of India (2017), which read the IPC exception to exclude wives under 18—an approach that continues to influence how courts conceptualise sexual autonomy and protection for minors within marriage.

This article examines (1) how “viewing/storing” penalties have expanded post-2024, (2) why digital evidence chains are now the backbone of POCSO cyber-prosecutions, and (3) how marital rape exceptions for minors have been dealt with doctrinally—and what gaps remain.

1) The 2024 Supreme Court ruling: a turning point for “viewing/storing” cases

1.1 What the Court decided—and why it mattered

In Just Rights for Children Alliance, the Supreme Court overturned a Madras High Court order that had quashed criminal proceedings on the reasoning that “watching” or privately downloading child pornography, without publication or transmission, was not covered by POCSO or the IT Act. The Supreme Court held that Section 15 of the POCSO Act and Section 67B of the Information Technology Act penalise “any form of use” of child sexual abuse material, including storing and watching, and must be interpreted purposively to suppress the mischief and advance child protection.

The Court also addressed the language problem. It observed that “child pornography” is a misnomer because pornography implies consensual adult activity, whereas such material records exploitation and abuse. The Court therefore recommended using the term “child sexual exploitative and abuse material (CSEAM)” and directed that courts avoid the term “child pornography” in future judicial orders and judgments.

1.2 Section 15 POCSO: three distinct offences (and how “mere viewing” fits in)

A central contribution of the judgment is its structured reading of Section 15. The Court explained that Section 15 contains three distinct offences, differentiated by intention (mens rea), and that investigators and courts must not treat Section 15 as a single monolithic offence.

  • Section 15(1): penalises failure to delete/destroy/report CSEAM that is stored or in possession, when circumstances indicate an intention to share or transmit; the intent can be inferred from the manner of storage and surrounding facts.
  • Section 15(2): penalises actual transmission/propagation/display/distribution, or facilitation (preparation/setup) enabling these acts; it requires “something more” than mere storage.
  • Section 15(3): penalises storage/possession for commercial purpose; actual profit need not be proven if circumstances show intent to derive gain or benefit.

Most importantly for “viewing” cases, the Court held that even viewing/streaming without saving a file can amount to “possession” under Section 15 if the viewer exercises an invariable degree of control—through the doctrine of constructive possession. This reasoning bridges older debates where defence arguments often relied on “no file saved = no possession.”

1.3 Section 67B IT Act: not limited to publication/transmission

The Madras High Court had treated Section 67B as primarily punishing publication / transmission / creation. The Supreme Court rejected this narrow construction and described Section 67B as a comprehensive provision designed to penalise multiple electronic forms of exploitation, including creation, possession, propagation, and consumption, so that online child sexual exploitation is tackled at all points of the chain (demand as well as supply).

1.4 The presumption under Section 30 POCSO: prosecution advantage, defence strategy shift

A major procedural consequence lies in the Court’s reading of Section 30 POCSO (presumption of culpable mental state). The Court held that once the prosecution establishes foundational facts for the alleged Section 15 offence, the statutory presumption can operate—and it can be considered even at the quashing stage (Section 482 CrPC) in appropriate cases. This matters because defence practice in cyber-POCSO cases often seeks early quashing by arguing “no intent,” but the Court’s approach makes courts more cautious and places greater weight on foundational digital facts.

1.5 Practical implications: what prosecutors now focus on

Post-2024, prosecutions are likely to concentrate on:

  • Evidence of control (logins, browser sessions, cache, watch history, saved links, folder structures) to establish constructive possession.
  • Conduct showing failure to delete/destroy/report and circumstances that indicate intent under 15(1).
  • Any “overt act” that suggests facilitation or distribution for 15(2) (forwarding, group links, upload attempts, share menus, cloud sync).
  • Indicators of commercial intent for 15(3) (paid groups, crypto payments, monetised channels, barter systems).

2) Digital evidence chains: the make-or-break factor in “viewing/storing” prosecutions

If earlier POCSO enforcement largely relied on victim testimony and medical evidence, cyber-enabled offences are built on forensic integrity. In Just Rights for Children Alliance, the facts themselves demonstrate this: the accused’s phone was seized, sent for forensic analysis, and the forensic report identified multiple pornographic videos and two files that appeared to contain child pornography, extracted using a forensic tool and documented in a formal report. The judgment shows how courts now evaluate both (a) what was found and (b) how it was found.

2.1 The typical chain: from platform tip to courtroom exhibit

The pathway in many CSEAM cases increasingly looks like this:

  1. Platform detection / reporting: social media platforms may report suspected CSEAM to entities and then to law enforcement pipelines; in the case before the Court, a Cyber Tipline report path involving NCMEC → NCRB was referenced in the FIR narrative.
  2. FIR and seizure: device seizure must be documented, sealed, and logged to prevent contamination.
  3. Forensic imaging & extraction: a forensic image/extraction is created using recognised tools; in the case, extraction and report generation were described in the forensic report (including tool usage).
  4. Analysis: investigators look for file paths, timestamps, thumbnails, cache, chat apps (WhatsApp naming conventions were debated), and metadata.
  5. Court presentation: prosecution must connect the accused to the device, the device to the material, and the material to “child” depiction at least prima facie.

2.2 Key forensic issues courts scrutinise

(a) Integrity and tamper resistance
Courts become skeptical when the device handling record is weak—missing seal numbers, unclear custody transfers, or unexplained delays. The Supreme Court’s reproduction of forensic report details (device description, extraction method, report annexures) signals the premium placed on process.

(b) “Child” depiction: prima facie standard
The Court held that for offences like Section 15, it is enough if the material would make an ordinary prudent person reasonably believe it depicts a child; courts may rely on FSL or expert opinions, or assess themselves for prima facie satisfaction. This lowers the threshold at pre-trial stages while still requiring credible foundation.

(c) Possession vs automatic download
A common defence is “auto-download” (e.g., WhatsApp) or “unaware presence.” The judgment records exactly this type of argument: that “WA” in file names suggested WhatsApp auto-download and the accused was unaware. Practically, this pushes investigators to go beyond finding files and prove access/control—app settings, download preferences, frequency patterns, user activity, and whether the files were opened.

(d) Constructive possession and control
Because the Supreme Court accepts constructive possession for online viewing where control exists, evidence like account credentials, session tokens, deliberate search terms, saved playlists, or repeated access logs becomes highly relevant.

2.3 Intermediary reporting obligations and “due diligence”

The Court also linked child safety to intermediary duties, observing that given the mandatory nature of Sections 19 and 20 POCSO (read with relevant rules), intermediaries cannot claim safe-harbour under Section 79 IT Act unless they conduct due diligence that includes not merely takedown but also reporting to authorities in the manner contemplated by POCSO. This adds another “chain” dimension: the ecosystem is expected to preserve reportability and traceability without weakening privacy protections for lawful users.

2.4 What investigators should do (and defence counsel will test)

In practice, “digital chain” litigation will revolve around:

  • Documenting seizure, seal, and custody steps with precision.
  • Producing the forensic extraction method and tool reliability narrative (as in the report discussed by the Court).
  • Establishing user linkage: SIM/account identity, device ownership, usage patterns, and exclusive access.
  • Demonstrating intent indicators relevant to 15(1)/(2)/(3), because Section 15 offences are intent-differentiated.

3) “Marital rape exceptions for minors”: the doctrine and its continuing relevance

3.1 The Supreme Court’s position in Independent Thought

India’s criminal law historically carried a marital rape exception in the IPC. The Supreme Court in Independent Thought v. Union of India (2017) read the exception down to mean that sexual intercourse by a man with his own wife is not rape only if the wife is not under 18 years of age. This removed the earlier carve-out that effectively left married girls between 15–18 without rape recourse against husbands.

Even though IPC has since been replaced (and the criminal law landscape is evolving), the core constitutional message remains influential: marriage cannot be used to dilute a minor’s right to bodily integrity and protection from sexual violence.

3.2 Intersection with POCSO and why it matters for “expansion”

POCSO is age-based and consent-agnostic: sexual activity with a child (under 18) triggers offences regardless of consent narratives. The marital rape exception debate intersects here because when the victim is a minor, both doctrinal and statutory policy push towards non-recognition of marital immunity and towards strict protection.

This matters in practice because:

  • In cases of child marriage, defence narratives sometimes attempt to import “marital status” as mitigation. Independent Thought rejects that logic for minors.
  • POCSO’s protective design, which the Supreme Court emphasised in its 2024 judgment (object and scheme), supports a child-centric approach over status-based exceptions.

3.3 The remaining gap: adult marital rape vs minor protection

A key nuance: Independent Thought does not create a general marital rape offence for adult wives; it narrows the exception only for minors. This leaves a broader legislative and constitutional debate open while still firmly establishing that minors are outside any marital immunity logic.

4) What this “expansion” means for courts, police, and policy

4.1 For courts: stricter approach to quashing and stronger child-centric interpretation

The Supreme Court explicitly cautioned that High Courts should be slow and circumspect in quashing POCSO cases, especially given presumptions like Section 30. The net effect is a higher likelihood that cyber-POCSO prosecutions will proceed to trial when foundational forensic facts exist.

4.2 For police: cyber capacity and specialisation is no longer optional

The 2024 case record demonstrates how cyber-tipline inputs, forensic tool extraction, and file-path analysis are central. Without trained personnel, standardised seizure protocols, and robust FSL support, prosecutions can fail on chain-of-custody and authenticity even when harmful material exists.

4.3 For society and intermediaries: reporting duties and terminology shift

By urging the use of “CSEAM” and emphasising mandatory reporting duties, the Court signals a larger policy move: treat these cases as exploitation records, not “content,” and treat reporting as part of child protection architecture.

Conclusion

The post-2024 landscape marks a decisive expansion of India’s legal response to child sexual exploitation in digital spaces. The Supreme Court has clarified that viewing and even non-saved consumption can amount to punishable possession under Section 15 POCSO through constructive possession, and that Section 67B IT Act must be read broadly to cover not only transmission but also creation, possession, and consumption. This expansion makes digital evidence chains—custody, forensic extraction, proof of control, and prima facie “child” depiction—the pivotal battleground in litigation. Alongside, the doctrinal move in Independent Thought ensures that minors remain protected from any marital rape exception logic, keeping child autonomy and bodily integrity at the centre of sexual-offence jurisprudence.

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