Sabu Mathew George v. Union Of India And Others

(2017) 2 SCC 516 (1)

Order dated 15-12-2014

(Before Dipak Misra and Uday U. Lalit, JJ.)

Writ Petition (Civil) No. 341 of 2008

1. Though a letter was circulated on behalf of Respondent 3 seeking three weeks' time to seek instructions, yet we have thought it apt to take up the matter regard being had to the directions issued in the previous order. Respondent 3 may file the additional affidavit within a period of three weeks and that shall be adverted to on the next date of hearing.

2. At this juncture, on a query being made, whether the Central Government has any device to see that Respondents 3 to 5 or such entities can be controlled not to show anything on their website which would violate the Indian Law, Mr Ranjit Kumar, learned Solicitor General, being instructed by Dr Gulshan Rai, Director General, Ministry of Information and Technology, submitted that there are certain areas which can be controlled and there are certain areas which may not be possible to control by the Central Government. We would like the competent authority to file a comprehensive affidavit which can be of assistance to this Court. Needless to say, the affidavit that shall be filed by the competent authority should be in consonance with the provisions contained in the Information Technology Act, 2000. The affidavit shall be filed within three weeks from today.

3. Let the matter be listed on 28-1-2015.

(2017) 2 SCC 516 (2)

Order dated 19-9-2016

(Before Dipak Misra and C. Nagappan, JJ.)

Writ Petition (Civil) No. 341 of 2008

4. 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 has been filed by the competent authority of the Ministry of Electronics and Information Technology, Government of India. It is submitted by Mr Ranjit Kumar, learned Solicitor General of India that there was a meeting with the three software companies, namely, Google India, Yahoo India and Microsoft Corporation (I) Pvt. Ltd. and, prior to the meeting, the Companies were asked to respond to the following questions:

“(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 prenatal determination of sex or sex selection?

(c) Whether the respondents are ready to block “auto-complete” failure for “keyword” searches which relates to pre-conception and/or prenatal determination of sex or sex selection?

(d) Whether the words/phrases relating to pre-conception and prenatal 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 “auto-complete” feature for keyword search and related terms, etc. relating to pre-conception and prenatal determination of sex or sex selection?

(g) Any other information as the respondents would like to share?”

5. The respondent Companies have submitted their replies to the Union of India, which have been brought by way of a chart as Annexure M1/4 to the affidavit filed by the said Ministry. We have already reproduced the questions posed by the Union of India. As we find from the chart, all the respondents have agreed to follow the law of this country and not to allow any advertisement or publish any content on their respective search engines.

6. Mr Ranjit Kumar, learned Solicitor General, has pointed out to the responses to Questions (a) to (g) in seriatim as submitted by the three Companies. We think it appropriate to reproduce the responses. They read thus:

“Google India Pvt. Ltd. Microsoft Corporation India Pvt. Ltd. Yahoo India Pvt. Ltd. Yes (i) Stated to have taken all possible steps to ensure compliance with PC-PNDT Act. Yes (i) Informed their absolute compliance with the mandate of Section 22 of the PC-PNDT Act being the prohibition of advertisement in relation Yes (i) Stated that their advertising policy prohibits advertising that promotes pre-conception/prenatal sex selection techniques

(Ref.: Communication dated 19-7-2016, p. 43) to pre-conception and prenatal determination of sex or sex selection. (Ref.: Communication dated 1-8-2016, p. 63, Para 2) (Ref.: Communication dated 29-7-2016, p. 78, Reply 1) (ii) Further submitted that the intent behind Section 22 of the PC-PNDT Act is to expressly prohibit an advertisement that is a commercial communication and does not extend to other forms of content including “search results, videos, blogs or images” (Ref.: Communication dated 1-8-2016, p. 40, para 5.) (ii) Submitted that the prohibition does not, however, extend to any content outside of advertisements such as algorithmic search content images, the auto-complete function and the related search function that are algorithmically/organically populated. Yes Agrees to publish warning message at the top of the “keyword search” result web page. (Ref.: Communication dated 19-7-2016, p. 46, Pt. ii) Yes Agrees to issue a public service announcement on the search result pages. (Ref.: Communication dated 1-8-2016, p. 64, Para IV-4) Yes Agrees to publish warning message. (Ref.: Communication dated 29-7-2016, p. 80. Reply vi) Yes (i) Agrees to block certain terms that directly relate to prenatal gender detection and selection from appearing as auto-complete suggestions or as related search terms on the local domain. (ii) Further submits that this will remain an iterative process, which will require updating. (Ref.: Communication dated 19-7-2016, p. 46, Pt. i) Yes (i) Undertakes to restrict its auto-complete options and related searches options on Bing India for the keywords provided by/under MeitY's Affidavit dated 15-9-2015 in Para 4(a)-(u). (Ref.: Communication dated 1-8-2016, p. 64, Para V-6) Yes Agrees for disabling of auto-complete feature in in.yahoo.com that directly relate to prenatal gender detection and selection. (Ref.: Communication dated 29-7-2016, p. 80, Reply vii) (i) Has already blocked the “keyword search terms” as provided by/under MeitY's Affidavit dated 15-9-2015. (i) Has agreed to block the “keyword search terms” as provided by/under MeitY's Affidavit dated 15-9-2015 in Para 4(a)-(u), however, puts onus on the Government to provide additional keyword search terms in future and reserves its right to review the same. (Ref.: Communication dated 1-8-2016, p. 67, Para 16) (i) Has agreed to block the list of keywords provided by the Supreme Court and MeitY (as per Annexure A) to disable the auto complete. (ii) As there are vast numbers of permutation and combinations (ii) Informed that they update this list of keywords based on

of blocked terms, it undertakes to review and expand this list. (Ref.: Communication dated 19-7-2016, p. 45, Pt. ii) any reported violations of the Act that are brought to their attention in accordance with due process of law. (Ref.: Communication dated 29-7-2016, p. 80, Reply V. iii) No (i) Submits that the said order has already been placed as part of relevant terms of service/policy page. No (i) Submits that the said order has already provided the link to the said order in its advertisement policy pages. (Ref.: Communication dated 20-7-2016, p. 71, Para 15-iii) No (i) Submits that the said order has already been placed as part of relevant terms of service/page. (ii) Submits that it maintains a clear home page with links to only very specific information that is relevant to search engine services. (ii) Submits that displaying the order or featuring any link to the order on the ‘home page’ would interfere with the deliberate, highly thought-out design and functional layout of the Bing ‘home page’. (ii) Submits that their home page has certain limitations, business objectives, business expectations, and space and design constraints. As a result, and for legitimate business reasons, they cannot display such notices or order on the home page. (Ref.: Communication to MeitY vide email dated 19-7-2016 from Yahoo India Pvt. Ltd.) (iii) Further submits that a warning message should be treated as sufficient to serve the objective or spreading awareness on the issue. (iii) Microsoft informed that if the said court order is put up on the home page or a link to the same is featured on the page, it should have the effect of creating unnecessary concern/uncertainty amongst the larger community of users. (Ref.: Communication dated 20-7-2016, p. 72, Para 15-vi) On or before 15-9-2016 (Ref.: Communication dated 1-8-2016, p. 64, Para IV. 4) By September 15, 2016 (Ref.: Communication dated 29-7-2016, p. 80, Reply vii) (iv) Informed that placing a message on the home page would provide information on this issue to users regardless of their interest in this topic.

(Ref.: Communication dated 19-7-2016, p. 47, Pt. D-I) Requested 5 weeks' time. (Ref.: Communication dated 19-7-2016, p. 46, Pt. ii) Microsoft undertakes to limiting the visibility of suggestions on its auto-complete platform and related searches platform, against the queries/keywords indicated in the Government's Affidavit, by 31-12-2016 for the users located in India. Microsoft also confirms that by 15-9-2016, it will share an update with MeitY on the progress made in this regard. Yahoo India stated that they are responsible for managing and operating “in.yahoo.com”. Yahoo India has advertising policies that impose requirements for advertisements to appear on in.yahoo.com Yahoo India informed that Yahoo.com (which is subject to US laws) is a website managed by Yahoo! Inc., a separate legal entity incorporated in State of Delaware; USA Yahoo India is not authorised to make any statement on behalf of Yahoo! Inc. Yahoo India does not have responsibility over the operations of Yahoo Inc., given they are managed by different legal entity. (Ref.: Communication dated 29-7-2016, p., Reply ii) Further, Yahoo India informed that Duckduckgo.com (DDG) is a US-based, independent search provider. Yahoo India does not control and also does not have any contractual relationship with DDG. Therefore, we are not authorised to make any statements on behalf of DDG. Ref.: Communication dated 29-7-2016, p. 79, Reply iv) Ref.: Google India letter(s) dated 19-7-2016 and 1-8-2016 (annexed from pp. 38-62) Ref.: Microsoft India letter(s) dated 20-7-2016 and 1-8-2016 (annexed from pp. 63 to 77) Ref.: Yahoo India communications dated 19-7-2016, 29-7-2016 (annexed from pp. 78 to 88) Adwords-support@google.com Will provide by 15-9-2016 in-legalpoc@yahoo-inc.com

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 “auto block”. 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 Prenatal 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 “auto block” 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 Vishwanathan, learned Senior Counsel, Mr Anupam Lal Das, learned counsel appearing for Google India, Microsoft Corporation (I) Pvt. 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 auto block” 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 auto block” 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 so direct.

11. Regard being had to the submissions advanced at the Bar, especially the objections raised by Mr Parikh with regard to the expansive interpretation to be placed under Section 22 of the Act, let the matter be listed for final disposal on 16-11-2016. In the meantime, the competent authority of the Ministry of Health and Family Welfare, Government of India, shall file an affidavit.

(2017) 2 SCC 523

Order dated 16-11-2016

(Before Dipak Misra and Amitava Roy, JJ.)

Writ Petition (Civil) No. 341 of 2008

12. On 19-9-2016, the learned Solicitor General of India had submitted that there was a meeting with three software companies, namely, Google India Private Ltd., Yahoo! India and Microsoft Corporation (I) Pvt. Ltd. and prior to the meeting, the companies were asked to respond to certain questions. The said questions read as under:

“(a) Whether respondents feel obligated to comply with the provisions of 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 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 prenatal determination of sex or sex selection?

(c) Whether respondents are ready to block “auto-complete” failure for “keyword” searches which relates to pre-conception and/or prenatal determination of sex or sex selection?

(d) Whether the words/phrases relating to pre-conception and prenatal 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 “auto-complete” feature for keyword search and related terms, etc. relating to pre-conception and prenatal determination of sex or sex selection?

(g) Any other information as respondents would like to share?”

13. The responses of the companies were brought to the notice of the Court by way of a chart supported by an affidavit. On the previous occasion, the Court has produced the said chart and, thereafter, taken note of the submission of the learned Solicitor General that the 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 “auto block”. The said concept was clarified by stating that 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 Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short “the 1994 Act”), specifically under Section 22 of the said Act. Be it stated, at that juncture, Mr Sanjay Parikh, learned counsel for the petitioner had pointed out that the respondent companies were still engaged in publishing advertisements or accepting messages which are violative of Section 22 of the 1994 Act. Needless to say, that was refuted by the respondent companies.

14. The learned Solicitor General had submitted a “proposed list of words” and put forth that the principle of “auto-block” should be applied to the said words. The Court had taken note of the “proposed list of words”, which need not be repeated today. On behalf of the three companies, a submission was put forth that apart from the “proposed list of words”, if anyone, taking recourse to any kind of ingenuity, feed certain words and something that is prohibited under the 1994 Act comes into existence, the “principle of auto block” shall be immediately applied and it shall not be shown.

15. Today, an affidavit has been filed on behalf of Google India Private Ltd., Respondent 3 herein. Dr Abhishek Manu Singhvi, learned Senior Counsel appearing for Google India Private Ltd. has placed reliance on the said affidavit, especially Para 9, that deals with contractual commitments, policy measures, technical and other measures to enforce the policy restrictions, shopping, auto-complete and related search terms and warning messages. That apart, it is urged by him that Section 22 of the 1994 Act only relates to advertisement and cannot travel beyond it. According to him, Section 79(1) of the Information Technology Act, 2000 as amended by the Information Technology (Amendment) Act, 2008, has been read down in Shreya Singhal v. Union of India (2015) 5 SCC 1, so that it could be constitutionally treated as valid. Para 122 of Shreya Singhal (2015) 5 SCC 1 reads as under:

“122. Section 79(3)(b) has to be read down to mean that the intermediary upon receiving actual knowledge that a court order has been passed asking it to expeditiously remove or disable access to certain material must then fail to expeditiously remove or disable access to that material. This is for the reason that otherwise it would be very difficult for intermediaries like Google, Facebook, etc. to act when millions of requests are made and the intermediary is then to judge as to which of such requests are legitimate and which are not. We have been informed that in other countries worldwide this view has gained acceptance, Argentina being in the forefront. Also, the Court order and/or the notification by the appropriate Government or its agency must strictly conform to the subject-matters laid down in Article 19(2). Unlawful acts beyond what is laid down in Article 19(2) obviously cannot form any part of Section 79. With these two caveats, we refrain from striking down Section 79(3)(b).”

16. Section 22 of the 1994 Act is to the following effect:

“22. Prohibition of advertisement relating to pre-conception and prenatal 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 prenatal 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 prenatal 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.”

17. Submission of Mr P.S Narasimha, learned Additional Solicitor General appearing for the Union of India today is that the term “advertisement” as used in Section 22 of the 1994 Act, if read in conjunction with Explanation appended thereto, is an inclusive definition and not restricted to the advertisement as is understood in common parlance. The learned Additional Solicitor General would lay emphasis on the legislative intendment to explain the term “advertisement” and contend that a broader meaning has to be conferred. Dr Abhishek Manu Singhvi, Mr K.V Viswanathan, learned Senior Counsel and Mr Anupam Lal Das, learned counsel appearing for the three companies would contend that the term “advertisement” has to be understood in the commercial sense and neither Section 22 of the 1994 Act nor the Explanation carries the meaning to a greater horizon. According to them, it requires further debate.

18. Mr Sanjay Parikh, learned counsel appearing for the petitioner would submit that despite the order passed by this Court from time to time, one would still get the advertisements or the information pertaining to gender test, gender test in pregnancy, gender test kit in India, gender test by skin darkening, gender test in home, gender test with baking soda, gender test during pregnancy and gender test for boy or girl. According to Mr Parikh, these are nothing but advertisements and it is difficult to close one's eye to these kinds of innovative approaches. The learned counsel would submit that the purpose and object of the 1994 Act is to provide for prohibition of sex selection before or after conception, and for regulation of prenatal diagnostic techniques for the purpose of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders. He has also drawn our attention to the Preamble of the Act that provides for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto.

19. As we have noticed today, the submission of the respondent companies is that access to information of any nature, unless it is not advertisement, which is prohibited under Section 22 of the 1994 Act, would come within the freedom of access to have information. Mr P.S Narasimha, learned Additional Solicitor General would refer to the affidavit filed by the Union of India, especially Para 9. We think it appropriate to reproduce the said paragraph, which reads as under:

“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.”

20. There can be no doubt that there has to be freedom of access to information but, a significant one, such freedom cannot violate a law that holds the field. Be it noted, this Court has shown its concern with regard to the decrease of sex ratio in three decisions, namely, Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India (2001) 5 SCC 577, Centre for Enquiry into Health & Allied Themes (CEHAT) v. Union of India (2003) 8 SCC 398, Voluntary Health Assn. of Punjab v. Union of India (2013) 4 SCC 1 and recently in Voluntary Health Assn. of Punjab v. Union of India (2016) 10 SCC 265, (2016) 10 SCC 275. The concern of the legislative response in the 1994 Act has been further articulated by this Court in last two decades. In such a situation, whether the companies can take shelter of free access or choose to be catalysts in the depletion of sex ratio, has to be debated.

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.

22. Let the matter be listed for final disposal on 16-2-2017.

Court Masters