Sunday, 26 March 2017

Whether freedom of access to information can violate existing law?


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) and others vs. Union of India
and others (2001) 5 SCC 577, Centre for Enquiry into Health
& Allied Themes (CEHAT) and others vs. Union of India and
others (2003) 8 SCC 398, Voluntary Health Association of
Punjab vs. Union of India and others (2013) 4 SCC 1, and
recently in Voluntary Health Association of Punjab vs. Union
of India and others 2016 (10) SCALE 531. 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.
 S U P R E M E C O U R T O F  I N D I A

Writ Petition (Civil) No.341/2008
SABU MATHEW GEORGE 
 V
UNION OF INDIA & ORS. 

CORAM :
 HON'BLE MR. JUSTICE DIPAK MISRA
 HON'BLE MR. JUSTICE AMITAVA ROY
Dated:16th February, 2017.
Citation:(2017) 2 SCC 514


On 19th September, 2016, the learned Solicitor
General of India had submitted that there was a meeting with
three software companies, namely, Google India Private
Limited, 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
28.01.2015?
(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?
(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 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 Pre-natal 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.
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.
Today, an affidavit has been filed on behalf of the
respondent No.3, Google India Private Limited, the respondent
No.3 herein. Dr. Abhishek Manu Singhvi, learned senior
counsel appearing for the Google India Private Limited has
placed reliance on the said affidavit, especially paragraph
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 vs. Union of India (2015) 5 SCC 1, so
that it could be constitutionally treated as valid.
Paragraph 122 of Shreya Singhal reads as under:-
“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).”
Section 22 of the 1994 Act is to the following
effect:-
“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 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.”
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. 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. Vishwanathan, 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.
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. 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 pre-natal 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.
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 paragraph
9. We think it appropriate to reproduce the said paragraph,
which reads as under:-
“The 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 what so ever 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 & 08.08.2016. 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 PC &
PNDT Act are strictly implemented.”
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) and others vs. Union of India
and others (2001) 5 SCC 577, Centre for Enquiry into Health
& Allied Themes (CEHAT) and others vs. Union of India and
others (2003) 8 SCC 398, Voluntary Health Association of
Punjab vs. Union of India and others (2013) 4 SCC 1, and
recently in Voluntary Health Association of Punjab vs. Union
of India and others 2016 (10) SCALE 531. 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.
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 concerned
search engine or the corridor provider 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 herein-before. The Nodal
Agency shall put the ultimate action taken by the search
engine on its website.
Let the matter be listed for final disposal on
16th February, 2017.

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