Legal change due to gaps in proposed policies

At the heart of the Supreme Court’s decision is the concept of “constructive possession”, which goes beyond the traditional understanding of possession to include access to and control of child sexual abuse material, even if it has not been stored or downloaded. The court held that an individual’s ability to manipulate, modify or delete CSEAM, even if only temporarily accessed, satisfies the possession requirement under Section 15 of the POCSO Act.

The court held that possession goes beyond merely physically holding the material. Constructive possession occurs when a person has control or access to the material in question, even if it is stored digitally or on a device not directly in their possession.

While the apex court borrowed jurisprudence from the decision of the United States court (USV Tucker, 150 F. Support. 2nd day 1263 (B. Utah. 2001)) On the issue of constructive ownership of CSEAM, it has now held that a person’s control over CSEAM can be determined by whether they have the ability to alter, alter or destroy the material. If the answer is positive, the person is considered to have constructive possession of the CSEAM, even if it was only temporarily accessed.

In the digital context, instant control can mean accessing material via phone or computer, even if it is not actively monitored. The court held that if such material is retained and the accused chooses not to delete it or fails to notify it, it satisfies the constructive possession requirement and triggers civil consequences under Section 15(1) of the POCSO Act. This interpretation is consistent with the broader understanding of constructive ownership, where liability is determined by intent and control over material rather than merely physical possession. This approach expands the scope of liability for those who consume child pornography online.