Supreme Court - Daily Orders
Sabu Mathew George vs Union Of India And Ors. on 19 September, 2016
Bench: Dipak Misra, C. Nagappan
WP(C) 341/2008
1
ITEM NO.1 COURT NO.4 SECTION PIL(W)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Writ Petition (Civil) No.341/2008
SABU MATHEW GEORGE Petitioner(s)
VERSUS
UNION OF INDIA & ORS. Respondent(s)
(With appln. (s) for permission to file additional documents)
Date : 19/09/2016 This petition was called on for hearing today.
CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA
HON'BLE MR. JUSTICE C. NAGAPPAN
For Petitioner(s) Mr. Sanjay Parikh, Adv.
Ms. Manjula Gupta, AOR
For Respondent(s) Mr. Ranjit Kumar, S.G.
Ms. Binu Tamta, Adv.
Mr. Ajay Sharma, Adv.
Ms. Gunwant Dara, Adv.
Mr. Arvind Kumar Sharma, AOR
Mr. R.R. Rajesh, Adv.
Mr. D. S. Mahra, AOR
For R-3 Mr. C.A. Sundaram, Sr. Adv.
Mr. Shashank Manish, Adv.
Mr. Praveen Sehrawat, Adv.
Ms. Priyadarshi Banarjee, Adv.
Mr. Sarans Jain, Adv.
Mr. E. C. Agrawala, AOR
For R-5 Mr. K.V. Vishwanathan, Sr. Adv.
Ms. Saanjh N. Purohit, Adv.
Signature Not Verified
Mr. Tanuj Bhushan, Adv.
Digitally signed by
CHETAN KUMAR
Date: 2016.09.19
Mr. S. S. Shroff, AOR
18:40:16 IST
Reason:
For R-4 Mr. Anupam Lal Das, AOR
Mr. Anirudh Singh, Adv.
Mr. Sahil Monga, Adv.
WP(C) 341/2008
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UPON hearing the counsel the Court made the following
O R D E R
In pursuance of our orders dated 5th July, 2016, and 25th July, 2016, an affidavit has been filed by the competent authority of the Ministry of Electronics & 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 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 28.01.2015?
(b) Whether Respondents are ready to publish a “Warning Message” on top of search result, as and when any user in India submits any “key word searches” in search engines, which relates to pre conception and pre natal deermination of sex or sex selection?
(c) Whether Respondents are ready to block “auto-complete” failure for “key word” 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 'key word 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 28.01.2015 on their respective Home Page(s), instead of placing them on Terms of Service (TOS) pages?
WP(C) 341/2008 3
(f) What is the suggested timeline to incorporate “Warning Message”, blocking of the “auto-complete” feature for key word search & related terms etc. relating to pre-conception and pre-natal determination of sex or sex selection?
(g) Any other information as Respondents would like to share?” The respondents-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.
Mr. Ranjit Kumar, learned Solicitor General has pointed out to the responses to the 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. Microsoft Yahoo India Pvt Ltd.
Ltd. Corporation India
Pvt. Ltd.
Yes Yes Yes.
(i) Stated to i) Informed (i) Stated that
have taken all their absolute their advertising
possible steps to compliance with policy prohibits
ensure compliance the mandate of advertising that
with PC-PNDT Act. Section 22 of PC & promotes
(Ref : PNDT Act being the pre-conception/
Communication prohibition of prenatal sex
dated 19th July, advertisement in selection techniques
2016, Page No.43) relation to (Ref: Communication
conception and pre dated 29th July, 2016
natal page 78 no. reply.1
ii) Further determination of
submitted that the
WP(C) 341/2008
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intent behind sex or sex
sec.22 of the selection.
PCPNDT Act is to (Ref.)
expressly prohibit Communication
an advertisement dated 1st Aug.
that is a 2016, page no.63,
commercial para 2)
communication and
does not extend to
other forms of
ii) Submitted
content including that the
“search results,
prohibition does
videos, blogs or not, however
images” extend to any
(Ref : content outside of
Communication advertisements
dated 1 st
August, such as
2016, Page no.40, algorithmic search para no.5. content images, the auto-complete function and the related search function that are algorithmically/ organically populated.
Yes. Yes Yes
Agrees to publish Agrees to issue a Agrees to publish
Warning Message at public service Warning Message.
the top of the announcement on
“key word search” the search result result web page. pages (Ref : Communication dated 29th July 2016, (ef : (Ref : Page no.80 reply.vi) Communication Communication dated 19 th July, dated 1st Aug., 2016, Page no.46, 2016, Page no.64 Pt.ii Para IV-4) Yes Yes. Yes.
(i) Agrees to (i) undertakes to Agrees for disabling block certain restruct its of Auto complete terms that auto-complete feature in directly relate to options and in.yahoo.com that pre-natal gender related searches directly relate to detection & options on Bing pre-natal gender selection from India for the key detection & selection WP(C) 341/2008 5 appearing as words provided auto-complete by/under MeitY's (Ref : Communication suggestions or as Affidavit dated dated 29th July, 2016, related search 15.09.2015 in para Page no.80 reply.vii) terms on the local 4(a) – (u). (Ref :
domain. Communication
dated 1st Aug,
2016, Page no. 64,
(ii) Further Para V-6)
submits that this
will remain an
iterative process,
which will require
updating.
(Ref :
Communication
dated 19th July
2016, Page no.46,
Pt.i)
(i) Has already (i) Has agreed to (i) Has agreed to
blocked the “key block the “key block the list of
word search terms” word search terms” keywords provided by
as provided as provided the Supreme Court and
by/under MeitY's by/under MeitY's the MeitY (as per the
Affidavit dated Affidavit dated Annexure A) to
15.09.2015. 15.09.2015 in para disable the auto
4(a) – (u), complete.
however puts onus
(ii) As there are on the Government
vast numbers of to provide (ii) Informed that
permutation and additional key they update this list
combinations of word search terms of key words based on
blocked terms, it in future and any reported
undertakes to reserves its right violations of the Act
review and expand to review the that are brought to
this list. same. their attention in
accordance with due
process of law.
(Ref : (Ref :
Communication Communication
dated 19th July dated 1st Aug, (Ref : Communication
2016, Page no.45, 2016, Page no.67, dated 29th July 2016,
Pt.ii) Para no.16 Page no.80, Reply .V.
iii)
No No No
(i) Submits that (i) Submits that (i) Submits that the
WP(C) 341/2008
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the said order has the said order has said order has
already been already provided already been placed
placed as part of the link to the as part of relevant
relevant Terms of said order in its Terms of
Service/Policy advertisement Service/Page.
Page. policy pages
(ii) Submits that
(ii) Submits that (Ref: their home page has
it maintains a Communication certain limitations,
clear Home Page dated 20th July, business objectives,
with links to only 2016, Page no.71, business
very specific Para no. 15-iii) expectations, and
information that space and design
is relevant to constraints. As a
search engine (ii) Submits that result, and for
services. displaying the legitimate business
order or featuring reasons, they cannot
any link to the display such notices
(iii) Further order on the 'Home or order on the home
submits that a Page' would page.
Warning Message interfere with the
should be treated deliberate, highly
as sufficient to thoughtout design (Ref : Communication
serve the and functional to MeitY vide email
objective or layout of the Bing dated 19th July, 2016
spreading “Home Page”. from yahoo India
awareness on the Private Limited)
issue.
(iii) Microsoft
(iv) Informed that informed that if
placing a message the said court
on the homepage order is put up on
would provide the home page or a
information on link to the same
this issue to is featured on the
users regardless page, it should
of their interest have the effect of
in this topic creating
unnecessary
concern/uncertaint
(Ref :
y amongst the
Communication
larger community
dated 19th July,
of users.
2016, Page no.47,
Pt. D-I)
(Ref :
Communication
dated 20th July
2016, Page no.72,
Para no.15 -vi)
WP(C) 341/2008
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Requested 5 weeks On or before By September 15, 2016
time. September 15, 2016
(Ref : Communication
(Ref : (Ref : dated 29th July 2016,
Communication Communication 2016, Page no.80,
dated 19th July dated 1st Aug 2016, reply.vii) 2016, Page no.46, Page no.64, Para pt.ii) IV.4) Microsoft Yahoo India stated undertakes to that they are limiting the responsible for visibility of managing and suggestions on its operating auto-complete “in.yahoo.com”. Yahoo platform and India has advertising related searches policies that impose platform, against requirements for the queries/ key advertisements to words indicated in appear on the Government's in.yahoo.com.
Affidavit, by
31.12.2016 for the
users located in Yahoo India informed
India. Microsoft that Yahoo.com (which
also confirms that is subject to US
by 15.09.2016, it laws) is a website
will share an managed by Yahoo!
update with the Inc., a separate
MeitY on the legal entity
progress made in incorporated in State
this regard. of Delaware; U.S.A.
Yahoo India is not
authorized 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 29th July 2016,
2016 Page no. ,
reply.ii)
WP(C) 341/2008
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Further, Yahoo India
informed that
Duckduckgo.com (DDG)
is a U.S.-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 29th July, 2016,
2016, Page no.79,
reply.iv)
Ref. Google India Ref. Microsoft Ref. Yahoo India
letter(s) dtd: 19th India letter(s) communications dtd.
July, 2016 and 1st dtd. 20Th July 2016 19Th July 2016, 29th
August, 2016 and 1st Aug., 2016 July 2016 (annexed
(annexed from Page (annexed from from Page No.78 to
No.38-62) opage No.63 to 77) 88)
Adwords-support@go Will provide by in-legalpoc@yahoo-inc
ogle.com 15.09.2016 .com
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 Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short, 'the Act'), specifically under Section 22 of the said Act.
WP(C) 341/2008 9 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. 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.
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 WP(C) 341/2008 10 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” 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, 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 WP(C) 341/2008 11 emphasized that it has to be an in-house procedure/method to be introduced by the Companies, and we do direct.
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 16th November, 2016.
In the meantime, the competent authority of the Ministry of Health and Family Welfare, Government of India, shall file an affidavit.
(Chetan Kumar) (H.S. Parasher)
Court Master Court Master