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Kamlesh Vaswani v. Union Of India And Others
Factual and Procedural Background
The writ petition, numbered W.P. (Civil) No. 177 of 2013, seeks judicial intervention to curb the availability of pornography—particularly child pornography—on the Internet. The matter has generated a series of interim orders:
- 29 August 2014: The Court directed the Union Government to place the writ petition and two interlocutory applications before the Cyber Regulation Advisory Committee constituted under Section 88 of the Information Technology Act, 2000.
- 26 February 2016: The Supreme Court Women Lawyers’ Association was permitted to intervene. Two interlocutory applications (IA No. 2 of 2013 and IA No. 6 of 2015) raising overlapping prayers for blocking pornographic websites and adopting protective measures for children and women were taken up.
- 28 March 2016: The petitioners and intervenors submitted written suggestions to the Additional Solicitor General (ASG). The Union Government was granted additional time to obtain instructions and file an affidavit outlining proposed measures.
Legal Issues Presented
- Whether the Supreme Court should direct the Union Government to block pornography websites and other Internet platforms facilitating access to obscene material.
- Whether special and immediate regulatory measures are required to eliminate child pornography and protect minors from exposure and exploitation.
- Whether watching or being compelled to watch pornography in public spaces falls outside the protection of Article 19(1)(a) of the Constitution due to the restrictions envisaged under Article 19(2).
Arguments of the Parties
Petitioners (IA No. 2 of 2013)
- The Government must frame and enforce rules to stop child pornography first, and subsequently address all forms of online pornography.
- Viewing pornography in public cannot be defended under Article 19(1)(a) because freedom of speech is not absolute and must yield to considerations of public morality recognised under Article 19(2) and the Penal Code.
Intervenor – Supreme Court Women Lawyers’ Association (IA No. 6 of 2015)
- Described child pornography as a “moral cancer,” stressing that obscenity constitutes an offence under the Penal Code, 1860.
- Cited an incident in which a school bus driver and helper forced children to watch pornographic material and molested them, illustrating the urgent need for protective measures.
- Sought multi-fold directions to three ministries (Communication & IT; Women & Child Development; Human Resource Development) to improve filtering technology, public awareness, victim support, and school-level safeguards such as jammers and counsellors.
- Requested a general prohibition on viewing pornographic material in public places.
Union of India
- The ASG informed the Court that the Cyber Regulation Advisory Committee is already seized of the issue.
- Assured the Court that an exercise is underway to address child pornography and that a comprehensive affidavit outlining “ways and means” to curb such activities will be filed.
- Sought time to consider and incorporate suggestions received from petitioners, intervenors, and potentially the National Commission for Women.
Table of Precedents Cited
No precedents were cited in the provided opinion.
Court's Reasoning and Analysis
The Court’s orders are interim in nature and primarily procedural. Its reasoning can be distilled into four steps:
- Identification of Competent Bodies: Recognising the statutory mandate of the Cyber Regulation Advisory Committee under the IT Act, the Court initially directed that the petition materials be referred to this specialised body.
- Ensuring Inclusive Participation: By allowing the Supreme Court Women Lawyers’ Association to intervene, the Court opened the proceedings to specialised civil-society input, reflecting the public-interest dimension of the case.
- Soliciting Concrete Measures from the Executive: Instead of issuing immediate blanket bans, the Court tasked the Union Government—with input from petitioners and other stakeholders—to devise “ways and means” to curb pornography, especially child pornography. The Court underscored the constitutional imperative to protect children while respecting freedom of expression.
- Maintaining Ongoing Judicial Oversight: Through periodic listings and deadlines, the Court retained seisin of the matter, ensuring executive accountability and enabling incremental, evidence-based directions.
Holding and Implications
Current Holding: The Court (i) allowed the intervention application of the Supreme Court Women Lawyers’ Association, (ii) disposed of certain interlocutory applications after recording overlapping prayers, and (iii) directed the Union Government to file an affidavit proposing concrete measures to combat pornography and child pornography, with liberty to receive and incorporate suggestions from petitioners and the National Commission for Women. The matter stands adjourned for further hearing.
Implications: Although no final adjudication has occurred, these interim directions compel the executive branch to examine regulatory mechanisms under the Information Technology Act and related statutes to block access to pornography—particularly content involving minors. The orders keep the issue under active judicial scrutiny but do not set a binding precedent on the substantive constitutionality of Internet censorship.
Order dated 29-8-2014
(Before R.M. Lodha, C.J. and Kurian Joseph and Rohinton Fali Nariman, JJ.)
Writ Petition (C) No. 177 of 2013
1. Mr L. Nageswara Rao, learned Additional Solicitor General, submits that the Cyber Regulation Advisory Committee has been constituted under Section 88 of the Information Technology Act, 2000 and one of the briefs assigned to that Committee is with regard to availability of pornography on the internet.
2. Having regard to the issues which have been raised in the present writ petition, it will be appropriate if the Government places the copy of the writ petition and Interlocutory Applications Nos. 1 and 2 of 2013 before the above Committee for its consideration.
3. List the matter after six weeks.
Order dated 26-2-2016
(Before Dipak Misra and Shiva Kirti Singh, JJ.)
Writ Petition (Civil) No. 177 of 2013
IA No. 5 of 2015 in WP (C) No. 177 of 2013
4. This is an application for intervention by the Supreme Court Women Lawyers' Association through its General Secretary. Regard being had to the factual score, we think it appropriate to allow the application and accordingly the prayer for intervention stands allowed.
5. The interlocutory application stands disposed of.
IA No. 2 of 2013 and IA No. 6 of 2015 in WP (C) No. 177 of 2013
6. Though the prayers made in these interlocutory applications are different yet the main assertions are the same and the prayers, in a way, proceed on the same path.
7. In IA No. 2 of 2013, it has been prayed to direct the respondents to block the pornography websites, platforms, links, or downloading by whatever other internet means or name in order to prevent easy access whether in private or public and pass such other order/orders as may be deemed fit.
8. In IA No. 6 of 2015, the prayer is multifold. We think it apt to enumerate the prayers:
“(a) To issue appropriate directions to the Ministry of Communication and Information Technology:
(i) To take measures to promote the dissemination and improvement of filtering services.
(ii) To take strict measures to prevent distribution and access to pornography including measures regarding file sharing software.
(iii) To adopt various measures towards improvement in the effectiveness of blocking child pornography on the internet and to take measures to eliminate child pornography.
(b) To issue appropriate directions to the Ministry of Women and Child Development:
(i) For enhancement and to strengthening of protective measures to reinforce support for victims (both child and women).
(ii) To take effective steps to promote public relations and awareness raising activities concerning risks and proper use of the internet.
(c) To issue appropriate directions to the Ministry of Human Resource Development:
(i) To direct that jammers be installed inside the school premises and in the school buses to prevent access of pornographic sites on the cellphones by the driver or anyone who is in charge of the children in the buses.
(ii) To direct to have one male and female child counsellor in every school and special workshop to be conducted in schools for awareness of sex education.”
9. It is submitted by Mr Panjwani, learned counsel appearing for the applicant in IA No. 2 of 2013 that the Central Government is required to make certain rules and regulations initially to stop child pornography and thereafter to proceed to deal with all other grievances that have been put forth in the petition.
10. Ms Mahalakshmi Pavani, learned Senior Counsel appearing in IA No. 6 of 2015, has expressed her agony by submitting that child pornography is spreading like cancer and it would not be out of place to call it a moral cancer not on the ground of individual morality but on the foundation of obscenity which is an offence under the Penal Code, 1860. The learned Senior Counsel has brought to our notice how a school bus driver and his helper were arrested as they had forced the school children to watch pornography on their mobile phones and molested them. We have referred to the same not for any other purpose but to note the anguish put forth by the learned Senior Counsel appearing for the Supreme Court Women Lawyers' Association that the children need to be protected from this kind of moral assault, for these moral assaults have the potentiality to bring them physical disasters.
11. Ms Pinky Anand, learned Additional Solicitor General shall obtain instructions in this regard and file an appropriate affidavit of the competent authority to suggest the ways and means so that these activities are curbed. The innocent children cannot be made prey to these kind of painful situations, and a nation, by no means, can afford to carry any kind of experiment with its children in the name of liberty and freedom of expression. When we say nation, we mean each member of the collective.
12. Mr Panjwani, learned counsel would submit that watching pornography or being compelled to watch pornography in a public place can never come within the concept of freedom of speech or expression or thought as enshrined under Article 19(1)(a) of the Constitution, for the freedom, as envisaged under the Constitution, is not absolute. The learned counsel would submit that the freedom of speech cannot create a dent in the national character or the moral spine of the nation which comes within the constitutional morality because various provisions under the Penal Code deal with them that have been regarded as constitutionally valid.
13. Ms Pavani, learned Senior Counsel would submit that this Court may think of directing the Central Government to prohibit watching pornographic materials in any form at public places. Ms Pinky Anand, learned Additional Solicitor General submitted that as far as child pornography is concerned, exercise has been undertaken and the Central Government shall come with the scheme so that appropriate directions in that regard can be issued.
14. The petitioners are at liberty to give their suggestions to Ms Pinky Anand so that she can pass it on to the competent authority of the Central Government. If the Union of India so desires, it can ask for suggestions from the National Commission for Women and we are sure the said Commission would give its suggestions to the Union of India.
15. Let the matter be listed on 28-3-2016.
Order dated 28-3-2016
(Before Dipak Misra and Shiva Kirti Singh, JJ.)
Writ Petition (C) No. 177 of 2013
16. In pursuance of our order dated 26-2-2016, the learned counsel for the petitioners have given their suggestions to Ms Pinky Anand, learned Additional Solicitor General for the Union of India. The said suggestions have also been filed in the Court. Ms Pinky Anand prays for two weeks' time to obtain instructions in this regard.
17. Ms Mahalakshmi Pavani, learned Senior Counsel and Ms Jyotika Kalra, learned counsel appearing for the respondents submit that due to inadvertence they could not file the suggestions. They can file the suggestions and give a copy of the same to the learned Additional Solicitor General.
18. At this juncture, it is submitted by Mr Panjwani, learned counsel appearing for the petitioner that the Government of India vide Order No. 813-7/25/2011-DS (Vol. V) dated 31-3-2015, had issued certain directions to the internet service providers. The said order reads as follows:
“To All Internet Service Licensees Department of Electronics & Information Technology (DeitY) has requested to notify Intermediaries (ISPs) for disablement of the following URLs under the provision of Section 79(3)(b) of the Information Technology Act, 2000 as the content hosted on these websites relate to morality, decency as given in Article 19(2) of the Constitution of India:
1. 1indiansex.net
2. 3rat.com
3. 4hen.com
4. africansexvideos.net
5. bananabunny.com
6. cutepornvideos.com
7. desimurga.com
8. desisexclips.com
9. dslady.com”
19. Mr Vijay Panjwani, learned counsel appearing for the petitioner would submit that similar order should be passed by the Central Government so that pornography can be absolutely stopped. Additionally, submits Mr Panjwani, that further steps are required to be taken to stop child pornography. All these aspects shall be kept in view by the learned counsel appearing for the Union of India while addressing on the next date of hearing.
20. List the matter in the week commencing 25-4-2016.
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