The Supreme Court on Thursday sought the Centre’s reply to a petition demanding a ban on minors operating social media accounts, emphasising the need for robust safeguards.
The petition, filed by NGO Just Rights for Children Alliance, argued that because minors cannot legally enter into contracts, they should not be permitted to accept online user agreements required to create social media accounts.
A three-judge bench led by Chief Justice of India issued notices to the Ministries of Electronics and Information Technology, Law, and Labour, according to a report by the Indian Express.
During the hearing, Senior Advocate HS Phoolka, representing the petitioner before the bench, which also included Justice Joymalya Bagchi and Justice V Mohana, pointed out that are barred from using social media in the US.
Agreeing with the concerns, CJI Kant said, “We need some safeguard in India,” as reported by IE. Justice Bagchi noted, “There should be some firewalls”.
The public interest litigation (PIL), filed through Advocate Saksham Maheshwari, highlighted that children below 18 years of age are currently allowed to independently create and maintain accounts despite their statutory incapacity to enter a contract under Section 11 of the Indian Contract Act.
The law clearly states that a minor cannot enter into a valid contract.
The plea stated, “It is well settled that an agreement entered into by a person who was a minor on the date of execution is void ab initio. The absence of an effective and uniform mechanism giving practical effect to such statutory incapacity in the digital environment exposes children to foreseeable risks, including online grooming, sexual exploitation, trafficking, behavioural profiling, misuse of personal data, cyberbullying, exposure to age-inappropriate content and other harms affecting their safety, dignity, development and well-being.”
While urging the court to direct the government to prevent minors from entering into contracts with digital platforms, the petition clarified that minors must still be allowed access to educational content through accounts maintained and controlled by their parents or guardians.
It also sought guidance for social media platforms on implementing effective age-assurance mechanisms.
The PIL flagged a “fundamental legal and regulatory inconsistency” regarding minors’ access to these platforms.
“Under Section 3 of the Majority Act, 1875, a person attains majority only upon completing eighteen years. Under Section 11 of the Indian Contract Act, 1872, a person who has not attained the age of majority is not competent to contract,” the petition noted.
Despite this, platforms operating in India allow minors to create accounts merely by declaring their age. “Such account creation ordinarily involves acceptance of contractual terms such as Terms of Service, User Agreements, Privacy Policies, etc., governing the relationship between the platform and the user,” the plea added.
Addressing electronic agreements, the petition argued: “Section 10 A of the Information Technology Act, 2000 recognises contracts formed through electronic means but does not confer substantive contractual capacity upon a person who is otherwise incompetent to contract under Section 11 of the Indian Contract Act, 1872,” the petition said.
“The technological form of acceptance, including click-wrap acceptance or continued use of a platform, cannot therefore alter the substantive legal capacity of a minor.”
The NGO pointed out that while the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, prescribe due diligence obligations regarding harmful content and the protection of children, they remain “conspicuously silent” on a minor’s contractual capacity.
“Neither the said Rules nor the parent enactment prescribe any verifiable age-gating mechanism, parental-consent protocol, or other safeguard to prevent a child below the age of eighteen years, who is incompetent to contract under Section 11 of the Indian Contract Act, 1872,” the plea stated.
This regulatory gap has severe consequences, with the PIL stating that “independent online interaction by children exposes them to foreseeable risks including grooming and enticement, trafficking, sexual exploitation, cyberbullying, exposure to age-inappropriate material, misuse of personal data, behavioural profiling and other harms affecting their dignity, privacy, safety, development and well-being.”
The NGO noted it “has also directly assisted children in cases where online interaction has resulted in grooming, removal of children from their homes, trafficking and harassment.”
Highlighting a specific case, the petition said, “In a recent instance, two minor girls were rescued after being allegedly lured through Pinterest and a language-learning application with promises of becoming K-pop idols in South Korea. The girls were persuaded to leave their homes and were being moved towards and the international border region as part of a pre-planned journey allegedly orchestrated by individuals they had met online.”
“The incident demonstrates the serious risks of online grooming and enticement of minors through social media and digital platforms, including their removal from home and trafficking. The Petitioner has compiled several other reported instances from different parts of the country in which minors have allegedly been groomed, enticed, sexually exploited, subjected to blackmail, induced to leave their homes or moved across States through social-media platforms and online gaming applications. The reported instances include cases involving Instagram, Snapchat, WhatsApp and online gaming platforms, showing a recurring pattern of online contact being used to target and exploit children,” it added.
