Children's Fundamental Right to Internet Access and the Intermediary Due-Diligence Duty under POCSO and IT Law

What happened

On October 15, a Supreme Court Bench of Justices J.B. Pardiwala and K. Vinod Chandran held that a child, like any individual, has a fundamental right to access and use the Internet. The court found that its September 23, 2024 directions on online child safety (in a petition by Just Rights for Children Alliance) were largely ignored for two years, with an 'alarming increase' in CSEAM on social media, including links sold for Rs. 40 to Rs. 5,000. It called this a 'disquieting failure' by platforms and said safety measures must target harmful material and wrongdoers, not children.

Key takeaways

• Internet access as a fundamental right for children — the Court read it into Articles 19(1)(a) and 21 (as in Anuradha Bhasin and Faheema Shirin), extending it to minors; UPSC tests rights jurisprudence and expansion of Article 21.
• Safety through regulation of wrongdoers, not exclusion of children — the Court rejected bans as 'mistaking the victim for the problem'; reflects the proportionality and least-restrictive-means approach used in rights-balancing questions.
• Intermediary liability and due diligence — platforms must detect and remove CSEAM and report it promptly to police under Section 19 and 20 of POCSO; failure risks loss of Section 79 IT Act safe-harbour protection.
• Reactive reporting-based detection is inadequate — the Court noted reliance on user or authority reports and algorithm-driven promotion of indirect links, pointing to the need for proactive detection and inter-agency synergy.
• Contemporary example: the 2024 directions were largely unimplemented, showing the gap between judicial directions and executive enforcement, a recurring theme in judicial activism and governance questions.

Conceptual analysis

The concept at stake is how the Constitution balances a child's autonomy and access to information with the State's duty to protect children from exploitation in digital spaces. Indian courts have progressively recognised internet access as integral to freedom of speech and expression under Article 19(1)(a) and to the right to life and education under Article 21, as in Anuradha Bhasin (2020) and Faheema Shirin (Kerala HC, 2019). The October 15 judgment extends this to children, stressing that the Internet is often the only source of learning for remote-area children and the only community for children with special needs. Rather than restricting children, the Court places responsibility on offenders who create, circulate or seek CSEAM and on intermediaries who fail to detect and remove it. Statutorily, the POCSO Act, 2012 criminalises child pornography and mandates reporting of offences, while the IT Act, 2000 (Sections 67B and 79) and the IT Rules, 2021 set due-diligence obligations; failing them removes safe-harbour immunity. The Court observed that detection depends mainly on user or authority reports and that algorithms promote indirect links that evade penal provisions, calling for proactive technological detection and better coordination among platforms, police and regulators. The ruling reflects the rights-based, child-centric approach consistent with the UNCRC and the Constitution's Articles 15(3), 39(e)-(f) and 21A. It also shows judicial frustration with non-compliance by the executive and private actors, relevant to debates on judicial overreach versus enforcement gaps.

Concept explainers

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