The Supreme Court on Thursday sought the government’s help after a UPA affidavit filed in 2010 said that blocking websites featuring pre-natal sex determination advertisements “may not be desirable” as they “provide good content for medical education”.
This affidavit, a Bench led by Justice Dipak Misra found, is the last word the Supreme Court has heard on the government’s efforts to combat the continued online presence of such advertisements and websites.
Pre-natal sex determination was made an offence two decades ago under the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994.
The affidavit accepts that pre-natal sex determination is a crime in India. But it reasons that these advertisements are not just meant for Indian citizens but a global audience, some of whom belong to countries where it is not an offence.
“Also, most of these websites are hosted outside the country. Blocking such sites advertising pre-natal sex determination may not be feasible due to their hosting outside the country,” said the affidavit filed by the Cyber Laws Formulation and Enforcement Division of the Department of Information Technology.
Alarmed by the tone of “helplessness” in the four-year-old affidavit, the Bench asked for assistance from the current NDA government, saying an effort should be made to provide a legal solution that nothing contrary to the laws of this country are advertised or shown on websites.
S U P R E M E C O U R T O F
RECORD OF PROCEEDINGS
SECTION PIL
I N D I A
Writ Petition (Civil) No.341 of 2008
SABU MATHEW GEORGE
Petitioner(s)
VERSUS
UNION OF INDIA & ORS.
Respondent(s)
Date : 04/12/2014 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA
HON'BLE MR. JUSTICE UDAY UMESH LALIT
O R D E R
It
is
submitted
by
Mr.
Sanjay
Parikh,
learned
counsel appearing for the petitioner that despite the legal
prohibition, the respondents, namely, Google India,
Yahoo
India and Mocrosoft Corporation (I) Pvt. Ltd., are still
getting
things
provisions
advertised
contained
in
the
in
violation
Pre-conception
of
the
and
legal
Pre-natal
Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994, as amended from time to time.
submit
that
the
Department
of
Learned counsel would
Information
Technology,
Ministry of Communication and Information and the competent
authority of Department of Health and Family Welfare are
required
to
work
harmoniously
to
see
to
it
that
the
provisions of the 1994 Act are not violated, for that gravely
affects the sex ratio in the country which has been seriously
viewed by the legislature, as well as by this Court on the
basis of legislation made by the Parliament.
Mr. Shyam Divan, learned senior counsel appearing
for the respondent No3, Mr. Anupam Lal Das, learned counsel
appearing for the respondent No.4 and Mr. K.V. Vishwanathan,
learned senior counsel appearing for the respondent No.5,
pray for some time to file their respective replies to the
rejoinder affidavit filed by the petitioner.
WP(C) 341/2008
3
Before we proceed to deal with the prayer for grant
of time, we think it is obligatory to take note of one
aspect.
The Group Coordinator, Cyber Laws Formulation and
Enforcement Division,
Information Technology,
16th August, 2010.
Government
had
of
filed
India,
a
Department of
affidavit on
counter
We are compelled to reproduce a part of
the said affidavit:
“3(e)
While submitting this, it is further
to submit that technological limitations pose a
difficult task for providers of search engines
to filter out/block the information violating
the
law.
It
is
important
to
distinguish
between two types of results that show up on a
search engine.
(i)
Organic Search results -
When a user enters a query in the search box a
list of results that are most relevant to the
users query are shown.
In generating these
results the search engine nearly indexes the
information
accessible
that
on
is
the
authomated manner.
merely list
website
a
that
Internet
These
of
are
publicly
third
beyond
available
in
search
party
the
a
and
purely
results
are
independent
control
and
management of search engines themselves.
(ii)
Sponsored links -
Sponsored links referred to the advertisements
placed by advertisers after accepting the terms
and conditions of use.
the
goods
and
These links advertise
services
offered
by
any
WP(C) 341/2008
4
advertiser and upon clicking on the URL, take
the
user
to
advertiser
the
where
information
on
parent
the
the
website
user
can
of
find
particular
the
more
product
or
service that he/she is interested in.
(f)
The service provider/search engines only
provide the carriage, technology for indexing
information.
The
content
provided by others.
provider is providing
transmission
information
Wherever
only
the
is
service
the and
and
mechanism
carriage not the
contents/information, it is necessary that the
distinction needs to be made between a service
provider and a content provider. The service
provider the
can
only
be
liable
to
extent
service provided by him. Wherever the service
provider/search are
carriage
their
as
engines
well
absolute
out/block
as
providing
contents,
it
responsibility
the
violated
both
should
to
be
filter
information
and
sponsored links.
X
(s)
X
The
X
pre-natal
X
sex
X
determination
offence in India under PC & PNDT Act.
is
an
However,
it may not be an offence in other countries.
The information published on the websites is
generally
aimed
at
for
wider,
world
wide
dissemination and caters to the needs to many
countries
and
citizens.
may
not
be
for
the
Indian
Also, most of these websites are
hosted outside the country. Blocking of such
sites sex
may
advertising
not
be
pre-natal
feasible
due
to
determinaton
their
hosting
WP(C) 341/2008
5
outside the country.
websites
provide
education
and
Moreover, some of the
good
content
therefore
for
blocking
medical
of
such
websites may not be desirable.”
As we understand from the affidavit, it reflects a
kind of helplessness by the said deponent.
not
appreciate
the
manner
in
which
That apart, we do
the
stand
has
been
expressed in paragraph (s) of the counter affidavit, that has
been reproduced hereinabove.
Mr. Parikh, learned counsel for the petitioner, in
his turn, has submitted that other countries have been able
to control such advertisements, which violate the laws of
their countries by way of entering into certain
kind
of
agreement, developing technical tools and issuing appropriate
directions.
In our considered opinion, an effort has to be made
to see that nothing contrary to laws of this country are
advertised or shown on these websites. However, for the said
purpose, assistance
we
would
like
to
have
the
from
the
competent authority from the Department of Information and
Technology.
Solicitor
We
General
would
to
request
assist
us
Mr.
on
Ranjit
the
Kumar,
next
learned
date,
being
assisted by a competent officer, as it involves technical
issues.
Learned counsel for the respondent Nos.3 to 5 have
submitted that the websites do not violate the laws of India,
but as they provide a corridor, they do not have any control.
Be that as it may, a legal solution has to be arrived at.
List the matter on 15th December, 2014.
As agreed
to by the learned counsel appearing for the parties, let the
matter be taken up at 2.00 p.m.
Liberty to file reply, as prayed for by learned
counsel appearing for the respondent Nos.3 to 5, within a
week hence.
Call on date fixed.
(Chetan Kumar)
Court Master
(H.S. Parasher)
Court Master
No comments:
Post a Comment