Court: Supreme Court of India
Case No: WRIT PETITION (CIVIL) NO. 341 OF 2008
Citation: Sabu Mathew George v. Union of India, (2018) 3 SCC 229
Date of Judgement: 13 December 2017
Appellant: Dr. Sabu Mathew George
Respondents: Union of India and others
Bench: Dipak Misra, C.J. And A.M. Khanwilkar And D.Y. Chandrachud, JJ.
Advocates of Appellants:
Sanjay Parikh, Ms Anitha Shenoy, Ms Manjula Gupta and Ms Srishti Agnihotri
Advocates of Respondents:
Ms Pinky Anand, Additional Solicitor General, Ajit Kr. Sinha, K.V. Viswanathan and Dr A.M. Singhvi, Senior Advocates [Ms Binu Tamta, R.R. Rajesh, Dr Nishesh Sharma, Ms Gunwant Dara, G.S. Makker, Anupam Lal Das, Anirudh Singh, Krishanu Barua, Tanuj Bhushan, Aishvary Vikram, S.S. Shroff, Ravinder Nijhawan, Siddhant Buxy, Arvind Kr. Sharma, Mahesh Agarwal, Priyadarshi Banerjee, Vishal Gehrana, Vikrant Pachnanda, Nishant Rao, Arvind Chari, Saransh Jain, Shravan Sahny, Avishkar Singhvi, E.C. Agrawala, Ms Ruby Singh Ahuja, Ms Tahira Karanjawala, Sharavan Sahay, Ms Manik Karanjawala and Avishkar Singhvi (for M/s Karanjawala & Co.), Advocates]
Statutes:
Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 – Section 22, 23 & 26,
Pre-Natal Diagnostic Techniques (Regulation and Prevention Of Misuse) Act, 1994;
Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) Amendment Act, 2002 [Repealed] – Section 3;
Constitution of India – Article 19(1);
Indian Penal Code, 1860 (IPC)
Cases Referred:
Voluntary Health Assn. of Punjab v. Union of India,
CEHAT v. Union of India,
Sabu Mathew George v. Union of India Previous Orders,
Ajit Savant Majagvai v. State of Karnataka,
Vikas Yadav v. State of U.P.
Status: Writ Petition Disposed off
Issue:
Whether direction for effective implementation of provisions of 1994 Act was required to be issued.
Facts:
In 2008 a writ petition was filed by the appellant to ban ‘advertisements’ relating to pre-natal sex determination from search engines in India.
The reliefs sought in the Writ Petition are to command the Respondent Nos. 1 and 2, namely, Secretary, Ministry of Health and Family Welfare and Secretary, Ministry of Communication and Information Technology with the help of its agencies such as Computer Emergency Response Team (CERT) to block all such websites,
Including that of the Respondent Nos. 3 to 5, namely, Google India, Yahoo ! India and Microsoft Corporation (I) Pvt. Ltd and to stop all forms of promotion of sex selection such as advertisement on their websites as these violate the provisions of the 1994 Act,
It further sought to issue of a writ of mandamus to the said Respondents to post the directions of this Court on the front page of their search engines so that there is widespread public awareness and further constitute a separate monitoring committee of the CERT and civil society members to check against any future violations.
Arguments by Appellant:
It was submitted by Mr. Parikh, learned Counsel for the Petitioner, that despite the order passed by the Court, the Nodal Agency has not been effective to stop the offending material being displayed or purveyed on the internet. Learned Counsel squarely make Google India, Yahoo ! India and Microsoft Corporation (I) Pvt. Ltd. responsible for the same.
According to Mr. Parikh, these search engines have the potentiality to take necessary action to remove the offending material, but they deliberately do not remove it, by artificially constraining the word “content”. He laid immense stress on the “auto-block principle” and the concept of “key words” and associated possibilities.
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
Arguments by Respondent:
They submitted that apart from the aforesaid words, if anyone, taking recourse to any kind of ingenuity, feed 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 over emphasized that it has to be an in-house procedure/method to be introduced by the Companies, and we so direct.
Obiter Dicta:
The Court said that it is sure that the Union of India and its Committee will be in a position to take appropriate steps so that the mandate of the 1994 Act is not violated and the falling sex ratio in the country, as has been noted in Centre for Enquiry into Health & Allied Themes (CEHAT), Voluntary Health Association of Punjab (the 1st) and Voluntary Health Association of Punjab (the 2nd), does not remain a haunting problem.
Further the Court said that it is constrained to say so as many are guided by inappropriate exposure to the internet. The Respondents have a role to control it and if any concrete suggestion is given by the Petitioner, the same shall be incorporated.
We command Google India, Yahoo! India and Microsoft Corporation (I) Pvt. Ltd. to cooperate and give their point of view for the purpose of a satisfactory solution instead of taking a contesting stand before the Expert Committee.
Judgement:
1. Pursuant to the directions of present Court, a Nodal Agency has already been constituted and it is working in right earnest and whenever it receives any complaint, it intimates the search engine and contents are removed. [26]
2. Weighing the rivalised submissions at the Bar, the Nodal Agency and the Expert Committee are directed to hold a meeting and have the assistance of Sanjay Parikh and his team so that there can be a holistic understanding and approach to the problem. The Nodal Agency and the Expert Committee shall also call upon the representatives of Google India, Yahoo ! India and Microsoft Corporation (I) Pvt. Ltd, who are directed to appear before the Committee and offer their suggestions. There has to be a constructive and collective approach to arrive at a solution together with the Expert Committee and the search engine owners. They are obliged under law to find solutions if something gets projected in contravention of the 1994 Act. The effective solution is the warrant of the obtaining situation. The duty of all concerned is to see that the mandate of the 1994 Act is scrupulously followed. Keeping the aforesaid in view, a meeting shall be held within six weeks hence. All the suggestions or possibilities must be stated in writing before the Committee so that appropriate and properly informed measures are taken.
3. The Union of India and its Committee will be in a position to take appropriate steps so that the mandate of the 1994 Act is not violated and the falling sex ratio in the country, as has been noted in Centre for Enquiry into Health & Allied Themes (CEHAT), Voluntary Health Association of Punjab (the 1st) and Voluntary Health Association of Punjab (the 2nd), does not remain a haunting problem.
4. The Respondents have a role to control it and if any concrete suggestion is given by the Petitioner, the same shall be incorporated. Present Court command Google India, Yahoo ! India and Microsoft Corporation (I) Pvt Ltd to cooperate and give their point of view for the purpose of a satisfactory solution instead of taking a contesting stand before the Expert Committee.
5. With the aforesaid directions, the Writ Petition stands disposed of.
Conclusion:
In this landmark judgement, The Apex Court had listed roughly 40 search terms, imposing the aforementioned standard on the respondents, stating that any attempt at looking up the banned search terms would be ‘auto-blocked’. This ruling raised concerns about intermediary liability and free speech. The ‘doctrine of auto-block’ could block legitimate information relating to reproductive rights and sexual health.
To ensure compliance, the Court had also ordered (on November 16th, 2016) the creation of a nodal agency that would provide search engines with details of websites to be blocked. This nodal agency has come under criticism since it does not prescribe a review mechanism and circumvents the system of review instated by Section 69A of the IT Act.
The judgment, passed on the 13th of December, 2017, ordered the parties involved to convene a meeting, along with the aforementioned nodal agency and a previously instituted expert committee to discuss the best possible technical solutions within 6 weeks.
This judgement was very prominent in order to curb the practise of female foeticide and to maintain a healthy sex ratio in the country.
