Source: Supreme Court 

Why in News? 

Recently, bench of Chief Justice of India (CJI) D Y Chandrachud and Justice J B Pardiwala explained when ignorance of law can be taken as defence.  

• The Supreme Court explained the concept in the case of Just Right for Children Alliance v. S Harish. 

What was the Background of Just Right for Children Alliance v. S Harish Case? 

• On 29^th January 2020, the All-Women's Police Station in Ambattur, Chennai received a letter from the Additional Deputy Commissioner of Police (Crime against women and children Branch). 
• The letter stated that according to a Cyber Tipline Report from the National Crimes Record Bureau (NCRB), the respondent (accused) was an active consumer of pornography and had allegedly downloaded child pornographic material on his mobile phone. 
• A First Information Report (FIR) was registered against the respondent on the same day for offences under Section 67B of the Information Technology Act, 2000 (IT Act) and Section 14(1) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 
• During the investigation the respondent's mobile phone was seized and sent for forensic analysis. 
  • The respondent admitted to regularly viewing pornography while in college when questioned. 
• The Computer Forensic Analysis Report dated 22nd August 2020, revealed two video files relating to child pornography were found on the respondent's phone, depicting two underage boys involved in sexual activity with an adult woman. 
• Over a hundred other pornographic video files were also found downloaded and stored on the phone. 
• On September 19, 2023, a chargesheet was filed against the respondent for offenses under:  
  • Section 67B of the IT Act 
  • Section 15(1) of the POCSO Act (changed from the initially registered Section 14(1) based on the investigation findings) 
• The change in the POCSO Act section (from 14(1) to 15(1)) was made in light of the materials collected during the investigation and the findings in the Computer Forensic Analysis Report. 
• The accused contended that he was not aware that storing child pornography was a punishable offense under Section 15 of POCSO. 
• He claimed that the child pornographic material found stored in his mobile phone was due to his unawareness of the law, accompanied by a bona fide belief that such storage was not an offense. 
• Based on this claimed ignorance of the law, the accused argued that he should not be held liable for the offence. 
• However, the High Court of Judicature at Madras quashed the chargesheet under Section 67B of the IT Act, and Section 15(1) of the POCSO Act. 

What were the Court’s Observations? 

• The court concluded that the High Court made a significant error in its judgment.  
• As a result, the Supreme Court decided to set aside the High Court's judgment and restore the criminal proceedings in Special Sessions Case No. 170 of 2023 to the Sessions Judge of the Mahila Neethi Mandram (Fast Track Court) in Tiruvallur District. 
• Supreme Court explained the situation when ignorance of law can be taken as defence and also gave suggestions to Union of India and courts for better implementation of POCSO.  

When Ignorance of Law Can be Taken as Defence? 

Ignorance of Law v. Bona Fide Belief 

• The court distinguishes between ignorance of law and a bona fide belief arising from ignorance of law. 
• Mere ignorance of law is not a valid defence. 
• However, ignorance of law that leads to a bona fide belief in the existence of a right or claim can potentially be a valid defense in some cases. 

Four-Prong Test for Valid Defence 

• There must be ignorance or unawareness of a law. 
• This ignorance must give rise to a corresponding reasonable and legitimate right or claim. 
• The existence of such right or claim must be believed bona fide. 
• The act in question must take place on the strength of such right or claim. 

Limitations of the Defence 

• This defence is not statutory but rather a product of the doctrine of equity. 
• It depends on the specific facts and circumstances of each case. 
• Equity cannot supplant clear and unambiguous law. 
• Where positive law exists, equity will always yield to it. 

Application to Child Pornography Cases 

• The court ruled that ignorance of law regarding possession of child pornography cannot give rise to any legitimate right or claim. 
• Even if unaware of the specific law (Section 15 of POCSO), this does not create a reasonable belief in a right to possess such material. 
• Therefore, the defence of ignorance of law fails in child pornography cases. 

Statutory Presumption and Burden of Proof 

• In cases where statutory presumption of culpable mental state applies, defences like lack of knowledge or intention are matters for trial. 
• The accused must establish absence of culpable mental state through cogent evidence at trial. 
• Such defenses should not be considered at the stage of determining whether a prima facie case exists. 

What were the Suggestions Made by Court to Union of India and Other Courts? 

• The Parliament should seriously consider to bring about an amendment to the POCSO for the purpose of substituting the term “child pornography” that with “child sexual exploitative and abuse material” (CSEAM) with a view to reflect more accurately on the reality of such offences. The Union of India, in the meantime may consider to bring about the suggested amendment to the POCSO by way of an ordinance.  
• We put the courts to notice that the term “child pornography” shall not be used in any judicial order or judgment, and instead the term “child sexual exploitative and abuse material” (CSEAM) should be endorsed. 
• Implementing comprehensive sex education programs that include information about the legal and ethical ramifications of child pornography can help deter potential offenders. These programs should address common misconceptions and provide young people with a clear understanding of consent and the impact of exploitation.  
• Providing support services to the victims and rehabilitation programs for the offenders is essential. These services should include psychological counselling, therapeutic interventions, and educational support to address the underlying issues and promote healthy development. For those already involved in viewing or distributing child pornography, CBT has proven effective in addressing the cognitive distortions that fuel such behaviour. Therapy programs should focus on developing empathy, understanding the harm caused to victims, and altering problematic thought patterns.  
• Raising awareness about the realities of child sexual exploitative material and its consequences through public campaigns can help reduce its prevalence. These campaigns should aim to destigmatize reporting and encourage community vigilance. 
• Identifying at-risk individuals early and implementing intervention strategies for youth with problematic sexual behaviours (PSB) involves several steps and requires a coordinated effort among various stakeholders, including educators, healthcare providers, law enforcement, and child welfare services. Educators, healthcare professionals, and law enforcement officers should be imparted training to identify signs of PSB. Awareness programs can help these professionals recognize early warning signs and understand how to respond appropriately. 
• Schools can also play a crucial role in early identification and intervention. Implementing school-based programs that educate students about healthy relationships, consent, and appropriate behaviour can help prevent PSB.  
• To give meaningful effect to the above suggestions and work out the necessary modalities, the Union of India may consider constituting an Expert Committee tasked with devising a comprehensive program or mechanism for health and sex education, as well as raising awareness about the POCSO among children across the country from an early age, for ensuring a robust and well-informed approach to child protection, education, and sexual well-being.