(2017) 7 SCC 658
Order dated 16-2-2017
(Before Dipak Misra and R. Banumathi, JJ.)
Writ Petition (Civil) No. 341 of 2008
1. Heard Mr Sanjay Parikh, learned counsel along with Ms Ninni Susan Thomas, learned counsel for the petitioner, Mr Ranjit Kumar, learned Solicitor General of India along with Ms Binu Tamta, learned counsel for the Union of India, Dr Abhishek Manu Singhvi, learned Senior Counsel along with Ms Ruby Ahuja, learned counsel for Respondent 3, Mr Anupam Lal Das, learned counsel for Respondent 4 and Mr K.V Viswanathan, learned Senior Counsel for Respondent 5.
2. The present litigation projects, as Respondents 3 to 5 would comprehend, a dilemma for them, although we are unable to perceive any such dilemma. Since 2001, this Court has expressed its concern with regard to reduction of sex ratio in this country. It has gone to the extent of stating that when there is decrease in sex ratio, it is a disaster signal to the mankind. In the last decision, that is, Voluntary Health Assn. of Punjab v. Union of India (2016) 10 SCC 265, (2016) 10 SCC 275, the Court had issued number of guidelines. In the said case, it has been observed thus:
“45. Before parting with the case, let it be stated with certitude and without allowing any room for any kind of equivocation or ambiguity, the perception of any individual or group or organisation or system treating a woman with inequity, indignity, inequality or any kind of discrimination is constitutionally impermissible. The historical perception has to be given a prompt burial. Female foeticide is conceived by the society that definitely includes the parents because of unethical perception of life and nonchalant attitude towards law. The society that treats man and woman with equal dignity shows the reflections of a progressive and civilised society. To think that a woman should think what a man or a society wants her to think is tantamount to slaughtering her choice, and definitely a humiliating act. When freedom of free choice is allowed within constitutional and statutory parameters, others cannot determine the norms as that would amount to acting in derogation of law. Decrease in the sex ratio is a sign of colossal calamity and it cannot be allowed to happen. Concrete steps have to be taken to increase the same so that invited social disasters do not befall on the society. The present generation is expected to be responsible to the posterity and not to take such steps to sterilise the birth rate in violation of law. The societal perception has to be metamorphosed having respect to legal postulates.”
3. The present writ petition was filed in 2008 by the petitioner, a doctor in the field of Public Health and Nutrition, expressing his concern about the modus operandi adopted by Respondents 3 to 5 to act in detriment to the fundamental conception of balancing of sex ratio by entertaining advertisements, either directly or indirectly or as alleged, in engaging themselves in violation of Section 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for brevity “the 1994 Act”). Times without number, this Court has dwelt upon how to curb the said malady. In pursuance of our orders dated 5-7-2016 (2016) 14 SCC 418, (2016) 14 SCC 419 and 25-7-2016 (2016) 14 SCC 418, (2016) 14 SCC 420, an affidavit was filed by the competent authority of the Ministry of Electronics and Information Technology (MeitY), Government of India.
4. Be it noted, when the matter was taken up on 19-9-2016 (2017) 2 SCC 514, (2017) 2 SCC 516 (2), it was submitted by Mr Ranjit Kumar, learned Solicitor General, that a meeting was held with the three software companies, namely, Google India (P) Ltd., Yahoo! India and Microsoft Corporation (I) (P) Ltd. and the companies were asked to respond to certain questions. For the sake of completeness, it is necessary to reproduce the said questions: (Sabu Mathew case (2017) 2 SCC 514, (2017) 2 SCC 516 (2))
“(a) Whether the respondents feel obligated to comply with the provisions of the PC-PNDT Act, especially Section 22 of the Act as directed by this Hon'ble Court vide its order dated 28-1-2015 (2015) 11 SCC 545, (2015) 11 SCC 549?
(b) Whether the respondents are ready to publish a “warning message” on top of search result, as and when any user in India submits any “keyword searches” in search engines, which relates to pre-conception and pre-natal determination of sex or sex selection?
(c) Whether the respondents are ready to block “autocomplete” failure for “keyword” searches which relates to pre-conception and/or pre-natal determination of sex or sex selection?
(d) Whether the words/phrases relating to pre-conception and pre-natal determination of sex or sex selection to be provided and regularly updated by the Government for the “keyword search” or shall it be the onus of the respondents providing search engine facilities?
(e) Whether it is feasible for the respondents to place this Hon'ble Court order dated 28-1-2015 (2015) 11 SCC 545, (2015) 11 SCC 549 on their respective home page(s), instead of placing them on terms of service (TOS) pages?
(f) What is the suggested timeline to incorporate “warning message”, blocking of the “autocomplete” feature for keyword search and related terms, etc. relating to pre-conception and pre-natal determination of sex or sex selection?
(g) Any other information as the respondents would like to share?”
5. The responses to those questions were given by Respondents 3 to 5 and, thereafter, delving into the submissions which were assiduously canvassed by the learned counsel for the respondents, the following order was passed: (Sabu Mathew case (2017) 2 SCC 514, (2017) 2 SCC 516 (2))
“7. Explaining the same, it is submitted by the learned Solicitor General that all the three Companies are bound to develop a technique so that, the moment any advertisement or search is introduced into the system, that will not be projected or seen by adopting the method of “autoblock”. To clarify, if any person tries to avail the corridors of these companies, this devise shall be adopted so that no one can enter/see the said advertisement or message or anything that is prohibited under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short “the Act”), specifically under Section 22 of the said Act.
8. Mr Sanjay Parikh, learned counsel for the petitioner, would contend that the Union of India should have taken further steps to see that the law of the country is totally obeyed by these three Companies, inasmuch as the commitment given by them or the steps taken by the Union of India are not adequate. He has pointed out from the affidavit filed by the petitioner that there are agencies which are still publishing advertisements from which it can be deciphered about the gender of the foetus. The learned counsel would submit that Section 22 of the Act has to be read along with the other provisions of the Act and it should be conferred an expansive meaning and should not be narrowly construed as has been done by the respondents.
9. Mr Ranjit Kumar, learned Solicitor General at this juncture would submit that he has been apprised today only about the “proposed list of words” in respect of which when commands are given, there will be “autoblock” with a warning and nothing would be reflected in the internet, as it is prohibited in India. We think it appropriate to reproduce the said “proposed list of words”. It reads as under:
‘Proposed list of words
Gender selection
Gender selection kits
Gender selection service
Gender selection clinics
Gender selection technique
Prenatal sex selection
Prenatal sex selection kits
Prenatal sex selection service
Prenatal sex selection clinics
Prenatal sex selection technique
Prenatal sex determination
Prenatal sex determination kits
Prenatal sex determination service
Prenatal sex determination clinics
Prenatal sex determination technique
Baby gender selection
Baby gender selection kits
Baby gender selection service
Baby gender selection clinics
Baby gender selection technique
Prenatal diagnostic tests for selection of sex before or after conception
Prenatal conception test
Prenatal diagnostic
Prenatal foetoscopy for sex selection
Prenatal ultrasonography for sex selection
Sex selection procedure
Sex selection technique
Sex selection test
Sex selection administration
Sex selection prescription
Sex selection services
Sex selection management
Sex selection process
Sex selection conduct
Prenatal image scanning for sex selection
Prenatal diagnostic procedure for sex selection
Sex determination using scanner
Sex determination using machines
Sex determination using equipment
Scientific sex determination and sex selection
Gender test
Early gender test’
10. At this juncture, Mr C.A Sundaram, Mr K.V Viswanathan, learned Senior Counsel, Mr Anupam Lal Das, learned counsel appearing for Google India, Microsoft Corporation (I) (P) Ltd. and Yahoo! India, respectively, have submitted that apart from the aforesaid words, if anyone, taking recourse to any kind of ingenuity, feeds certain words and something that is prohibited under the Act comes into existence, the “principle of autoblock” shall be immediately applied and it shall not be shown. The learned counsel appearing for the search engines/intermediaries have submitted that they can only do this when it is brought to their notice. In our considered opinion, they are under obligation to see that the “doctrine of autoblock” is applied within a reasonable period of time. It is difficult to accept the submission that once it is brought to their notice, they will do the needful. It need not be overemphasised that it has to be an in-house procedure/method to be introduced by the Companies, and we do direct.”
6. The matter stood adjourned to 16-11-2016 (2017) 2 SCC 514, (2017) 2 SCC 523, and on that day (2017) 2 SCC 514, (2017) 2 SCC 523, the Court had gone through the affidavit filed by the Union of India and its understanding of Section 22 of the 1994 Act. The said understanding is to the following effect: (Sabu Mathew case (2017) 2 SCC 514, (2017) 2 SCC 523)
“19. …‘Section 22 and the Explanation appended to it is very wide and does not confine only to commercial advertisements. The intention of law is to prevent any message/communication which results in determination/selection of sex by any means whatsoever scientific or otherwise. The different ways in which the communication/messages are given by the internet/search engine which promote or tend to promote sex selection are prohibited under Section 22. The search engines should devise their own methods to stop the offending messages/advertisements/communication and if the compliance in accordance with law is not done Ministry of Electronics and Information Technology (MeitY), shall take action as they have already said in their affidavits dated 15-10-2015 and 8-8-2016. The Ministry of Health and Family Welfare is concerned about the falling child sex ratio and is taking all possible actions to ensure that the provisions of the PC-PNDT Act are strictly implemented.’”
7. The matter was heard at some length and pending the debate, the Court directed as follows: (Sabu Mathew case (2017) 2 SCC 514, (2017) 2 SCC 523)
“21. At this stage, pending that debate, in addition to the earlier directions passed by this Court, we direct that the Union of India shall constitute a “Nodal Agency” and give due advertisement in television, newspapers and radio by stating that it has been created in pursuance of the order of this Court and anyone who comes across anything that has the nature of an advertisement or any impact in identifying a boy or a girl in any method, manner or mode by any search engine shall be brought to its notice. Once it is brought to the notice of the Nodal Agency, it shall intimate the search engine or the corridor provider concerned immediately and after receipt of the same, the search engines are obliged to delete it within thirty-six hours and intimate the Nodal Agency. Needless to say, this is an interim arrangement pending the discussion which we have noted hereinbefore. The Nodal Agency shall put the ultimate action taken by the search engine on its website.”
8. In pursuance of the said order, the Union of India has filed an affidavit of the Joint Secretary, Ministry of Health and Family Welfare, Government of India. Paras 3 and 4 of the said affidavit read as follows:
“3. In compliance with the court's directive, this Ministry has set up a single point contact for the Nodal Agency to receive the complaints on violation of Section 22 of the PC & PNDT Act, 1994. Details of the Nodal Agency are as under:
(i) Contact e-mail address for Nodal Agency: pcpndtcomplaints@nihfw.org
(ii) Nodal Officer: Dr Chetan Chouhan, Senior Medical Officer
(iii) E-mail id and mobile number of Nodal Officer: chetanchouhan@nihfw.org, 9818305703
(iv) Alternative Nodal Officer and contact details: Dr Geetanjaly Singh, Senior Medical Officer E-mail: geetanjaly@nihfw.org Mobile No. 9968545794
4. That, further in compliance with directions, for advertising in television, newspaper and radio, appropriate steps are being undertaken and same shall be complied with at the earliest.”
In view of the aforesaid affidavit, we direct the Union of India to comply with Para 4 within a week hence. It shall be clearly mentioned that it is being done in pursuance of the order passed by this Court.
9. At this juncture, Mr Sanjay Parikh, learned counsel appearing for the petitioner, has drawn our attention to the additional affidavit filed on behalf of Respondent 3, especially to Paras 6(b) and (c). They read as follows:
“6. (b) There are innumerable activities banned by law, e.g using a bomb to kill people, murder, rape, prostitution, pornography, etc., nevertheless, there is no dearth of information available under each of these heads in both the offline and online world. Just because a particular activity is morally repugnant, illegal or prohibited under the provisions of the Indian Penal Code and other applicable laws, does not mean that everyone in the world is disentitled from having any form of information about the subject.
(c) This would be in complete violation of Article 19(1)(a) of the Constitution of India, which firstly includes the right to know, secondly, right to receive and thirdly, right to access the information or any content, etc.”
10. Refuting Para 6(b) of the affidavit, learned Solicitor General has submitted that he will file a response to the same. His instant reaction was that the said paragraph contravenes the letter and spirit of Section 22 of the 1994 Act. Additionally, it is contended by him that Para 6(b) is not saved by Article 19(1)(a) of the Constitution of India as asserted in Para (c). At this juncture, Ms Ruby Ahuja, learned counsel appearing for Respondent 3, has submitted that the said respondent has no intention to disrespect or disobey or even remotely think of contravening any law(s) of this country and she undertakes to file a clarificatory affidavit within three weeks.
11. It is necessary to take note of another submission advanced by Mr Parikh, learned counsel with the assistance of Ms Ninni Susan Thomas, learned counsel for the petitioner. It is urged by him that despite the order passed on 19-9-2016 (2017) 2 SCC 514, (2017) 2 SCC 516 (2), that Respondents 3 to 5 shall undertake the exercise of principle of “autoblock”, the literature and write-ups that would tempt the people to go for male child which ultimately lead to reduction of sex ratio, is still being shown in certain websites. The said websites were shown to Mr K.V Viswanathan, Mr Anupam Lal Das and Ms Ruby Ahuja. The learned counsel appearing for the respondents have submitted that they will verify the same and the context. Additionally, it is canvassed by Mr Viswanathan with immense vehemence that it does not come within the proposed list of words that find mention in the order dated 19-9-2016 (2017) 2 SCC 514, (2017) 2 SCC 516 (2), and, therefore, it cannot be construed as a violation. Be that as it may.
12. We reiterate our direction dated 19-9-2016 (2017) 2 SCC 514, (2017) 2 SCC 516 (2), and further add that Respondents 3 to 5 shall appoint their “in-house expert body” which shall take steps to see that if any words or any key words that can be shown in the internet which has the potentiality to go counter to Section 22 of the 1994 Act, should be deleted forthwith.
13. Presently, we shall advert to Paras 3 and 4 of the affidavit of the Union of India which we have reproduced hereinabove. As the Nodal Agency has already been constituted, it will be open to the petitioner or any person that the Nodal Agency shall take it up and intimate Respondents 3 to 5 so that they will do the needful. That apart, the “in-house expert body” that is directed to be constituted, if not already constituted, shall on its own understanding delete anything that violates the letter and spirit of language of Section 22 of the 1994 Act and, in case there is any doubt, they can enter into a communication with the Nodal Agency appointed by the Union of India and, thereafter, they will be guided by the suggestion of the Nodal Agency of the Union of India. Be it clarified, the present order is passed so that Respondents 3 to 5 become responsive to the Indian law.
14. Let the matter be listed on 11-4-2017, for further hearing.
(2017) 7 SCC 665 (1)
Order dated 11-4-2017
(Before Dipak Misra, A.M Khanwilkar and Mohan M. Shantanagoudar, JJ.)
Writ Petition (Civil) No. 341 of 2008
15. Heard in part. Put up for further hearing at 2.00 p.m on 13-4-2017.
16. The learned counsel for the parties undertake that they shall file written notes of submissions along with a convenience volume.
17. Ms Binu Tamta, learned counsel appearing for the Union of India, also undertakes to do so with the assistance of Mr Ranjit Kumar, learned Solicitor General of India.
(2017) 7 SCC 665 (2)
Order dated 13-4-2017
(Before Dipak Misra, A.M Khanwilkar and Mohan M. Shantanagoudar, JJ.)
Writ Petition (Civil) No. 341 of 2008
18. Heard Mr Sanjay Parekh, learned counsel for the petitioner, Mr Ranjit Kumar, learned Solicitor General for the Union of India, Mr Harish Salve, learned Senior Counsel, Dr A.M Singhvi, learned Senior Counsel and Mr Anupam Lal Das, learned counsel for Microsoft Corporation (I) (P) Ltd., Google India and Yahoo! India respectively.
19. In the course of hearing, Mr Sanjay Parekh, learned counsel has submitted that the respondents, namely, Microsoft Corporation (I) (P) Ltd., Google India and Yahoo! India are bound to follow scrupulously what is being stated in Section 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for brevity “the Act”). Section 22 of the Act reads as follows:
“22. Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention.—(1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including clinic, laboratory or centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of the foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such centre, laboratory, clinic or at any other place.
(2) No person or organisation including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.
(3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.
Explanation.—For the purposes of this section, “advertisement” includes any notice, circular, label, wrapper or any other document including advertisement through internet or any other media in electronic or print form and also includes any visible representation made by means of any hoarding, wall-painting, signal, light, sound, smoke or gas.”
20. Mr Parekh has drawn our attention to certain search results. One such result is “medical tourism in India”. It is pointed out by Mr Parekh that it deals with “gender determination” in India which is prohibited by the aforesaid provision.
21. At this juncture, Mr Salve, Dr Singhvi and Mr Das, learned counsel for the respondents submitted that the keywords are “medical tourism in India” which do not offend the provision. It is the “originator” of the blog who has used the offensive words in the contents of the website and in such a situation the Nodal Officer of the Union of India can block the website as per the Act.
22. Be it noted, in pursuance of the order (2017) 2 SCC 514, (2017) 2 SCC 516 (2) passed by this Court, the respondents have appointed their own “in-house” experts. It is accepted by the learned counsel for the respondents that they have never indulged in any kind of advertisement as contemplated under Section 22 of the Act and nor do they have any kind of intention to cause any violation of the said mandate. It is further accepted by them that they will not sponsor any advertisement as provided under Section 22 of the Act. The learned counsel for the respondents would contend, and rightly, that they do not intend to take an adversarial position with the petitioner but on the contrary to play a participative and cooperative role so that the law made by Parliament of India to control sex selection and to enhance the sex ratio is respected. It is further accepted by them that if the Nodal Officer of the Union of India communicates to any of the respondents with regard to any offensive material that contravenes Section 22, they will block it.
23. Needless to say, the intimation has to be given to the respondents. The Nodal Officers appointed in the States under the Act are also entitled to enter into communication with the respondents for which they have no objection. The action taken report, as further acceded to, shall be sent to the Nodal Officer. Be it stated, the names of the Nodal Officers have been mentioned in the affidavit filed by the Union of India dated 11-11-2016.
24. At this juncture, it is necessary to state that volumes of literature under various heads come within the zone of the internet and in this virtual world the idea what is extremely significant is “only connect”. Therefore, this Court has recorded the concession of the respondents so that the sanctity of the Act is maintained and there is no grievance on any score or any count by anyone that his curiosity for his search for anything is not met with and scuttled. To elaborate, if somebody intends to search for “medical tourism in India”, he is entitled to search as long as the content does not frustrate or defeat the restriction postulated under Section 22 of the Act. It is made clear that there is no need on the part of anyone to infer that it creates any kind of curtailment in his right to access information, knowledge and wisdom and his freedom of expression. What is stayed is only with regard to violation of Section 22 of the Act. We may further add that freedom of expression included right to be informed and right to know and feeling of protection of expansive connectivity.
25. As agreed to by the learned counsel for the parties, let the matter be listed on 5-9-2017 so that the outcome of this acceptance will be plain as day.
Court Masters