Doctrine of ‘Constructive Possession’

Doctrine of ‘Constructive Possession’

 

Context:

Recently, the Supreme Court of India introduced  the doctrine of “constructive possession, while passing its landmark judgment on clarifying that watching child pornographic material without downloading it, also constitutes a criminal offence under Section 15 of Protection of Children from Sexual Offences (POCSO) Act.

 

Relevance:

GS-02 (Indian Polity)

 

What is the Doctrine of ‘Constructive Possession’?

• The doctrine of “constructive possession” is a legal concept which means that it is considered as possession of an item to an individual even if they do not have direct physical control over it.
• In criminal law, this arises when a person has the intention and ability to control an item, either alone or with others. While actual possession involves direct physical control, constructive possession holds a person responsible for items they can control, even if those items are not physically in their custody.
• The doctrine generally arises in cases that involves drugs, stolen properties, etc., and with respect to the above judgement, it was to ensure that no person evades responsibility by deleting content after viewing it.
• It was introduced in order to hold people accountable for having the ability to access, control, or delete such materials.

 

Key Elements of Constructive Possession:

• Knowledge of the Item’s Presence: The individual must be aware of the item’s existence. Just being near the item without knowing it exists cannot constitute Constructive Possession.
• Ability to Exercise Control: The individual must have the power and intent to control the item or substance, even if it is not in their direct possession.
• Intent to Possess: There must be an intention to possess the item, which can be inferred from circumstances, such as the individual’s actions or the item’s location.

 

About the POCSO Act:

• The provides a comprehensive legal framework to protect children from sexual abuse and exploitation in India.
• It was enacted in 2012.
• It applies to minors under the age of 18 and includes provisions for sexual assault, harassment, and child pornography.
• Key Features of the POCSO Act:
  • The act defines “child”, as any individual under 18 years of age.
  • It obligates individuals who are aware of a child being sexually abused to report the offence, with penalties for non-reporting.
  • The Act prescribes a minimum of 10 years’ imprisonment for aggravated penetrative sexual assault, with potential for life imprisonment.