The instant Writ Petition has been filed by the petitioner, a public-spirited person, for issue of necessary directions for the effective implementation of provisions of the Act.
No Acts & Articles mentioned in this case
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 341 OF 2008
Dr. Sabu Mathew George Petitioner(s)
Versus
Union of India and others Respondent(s)
J U D G M E N T
DIPAK MISRA, CJI.
The instant Writ Petition has been filed by the petitioner,
a public spirited person, for issue of necessary directions for
the effective implementation of provisions of The
Preconception and Prenatal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (for brevity, “the 1994
Act”). 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
2
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, and
further 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.
2.Before we address the lis that has arisen in the present
Writ Petition and the orders passed on various occasions, it is
necessary to state here that the 1994 Act was enacted by the
Parliament being conscious of the increase of female foeticides
and resultant imbalance of sex ratio in the country. The
3
Statement of Objects and Reasons of the 1994 Act reads as
follows:
“Statement of Objects and Reasons
It is proposed to prohibit prenatal diagnostic
techniques for determination of sex of the foetus
leading to female foeticide. Such abuse of
techniques is discriminatory against the female sex
and affects the dignity and status of women. A
legislation is required to regulate the use of such
techniques and to provide deterrent punishment to
stop such inhuman act.
The Bill, inter alia, provides for:
(i) prohibition of the misuse of prenatal diagnostic
techniques for determination of sex of foetus,
leading to female foeticide;
(ii) prohibition of advertisement of prenatal
diagnostic techniques for detection or determination
of sex;
(iii) permission and regulation of the use of
prenatal diagnostic techniques for the purpose of
detection of specific genetic abnormalities or
disorders;
(iv) permitting the use of such techniques only
under certain conditions by the registered
institutions; and
(v) punishment for violation of the provisions of the
proposed legislation.”
3.Be it noted, initially the legislation was named as the
Prenatal Techniques (Regulation and Prevention of Misuse)
4
Act, 1994 and by Section 3 of the Prenatal Diagnostic
Techniques (Regulation and Prevention of Misuse) Amendment
Act, 2002 the nomenclature of the 1994 Act has been
amended which now stands as The Preconception and
Prenatal Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 with effect from 1.1.1996. Preamble to the 1994 Act
reads as follows:
“An Act to provide for the prohibition of sex
selection, before or after conception, and for
regulation of prenatal diagnostic techniques for the
purposes of detecting genetic abnormalities or
metabolic disorders or chromosomal abnormalities
or certain congenital malformations or sexlinked
disorders and for the prevention of their misuse for
sex determination leading to female foeticide and for
matters connected therewith or incidental thereto.”
4.At this juncture, we may profitably reproduce the
“Introduction” to the 1994 Act:
“In the recent past Prenatal Diagnostic Centres
sprang up in the urban areas of the country using
prenatal diagnostic techniques for determination of
sex of the foetus. Such centres became very popular
and their growth was tremendous as the female
child is not welcomed with open arms in most of the
Indian families. The result was that such centres
became centres of female foeticide. Such abuse of
5
the technique is against the female sex and affects
the dignity and status of women. Various
Organisations working for the welfare and uplift of
the women raised their heads against such an
abuse. It was considered necessary to bring out a
legislation to regulate the use of, and to provide
deterrent punishment to stop the misuse of, such
techniques. The matter was discussed in Parliament
and the Prenatal Diagnostic Techniques
(Regulation and Prevention of Misuse) Bill, 1991
was introduced in the Lok Sabha. The Lok Sabha
after discussions adopted a motion for reference of
the said Bill to a Joint Committee of both the
Houses of Parliament in September, 1991. The Joint
Committee presented its report in December, 1992
and on the basis of the recommendations of the
Committee, the Bill was reintroduced in the
Parliament.”
5.The Introduction, the Statement of Objects and Reasons
and the Preamble unmistakably project the scheme which is
meant to prohibit the misuse of preconception diagnostic
techniques for determination of sex; to permit and regulate
the use of prenatal diagnostic techniques for the purpose of
detection of specific genetic abnormalities or disorders; to
permit the use of such techniques only under certain
conditions by the registered institutions; and punish for
violation of the provisions of the proposed legislation. Prior to
the present incarnation of the 1994 Act, a Writ Petition was
6
filed before this Court by Centre for Enquiry into Health and
Allied Themes (CEHAT) and others which has been disposed
of on September 10, 2003 in Centre for Enquiry into Health
& Allied Themes (CEHAT) and others v. Union of India
and others
1
. In the said case, the twoJudge Bench
expressed its anguish over discrimination against girl child
and how the sex selection/sex determination adds to the said
adversity. Expressing concern over the said issue, it has been
stated:
“It is also known that a number of persons condemn
discrimination against women in all its forms, and
agree to pursue, by appropriate means, a policy of
eliminating discrimination against women, still
however, we are not in a position to change the
mental setup which favours a male child against a
female. Advanced technology is increasingly used
for removal of foetus (may or may not be seen as
commission of murder) but it certainly affects the
sex ratio. The misuse of modern science and
technology by preventing the birth of a girl child by
sex determination before birth and thereafter
abortion is evident from the 2001 Census figures
which reveal greater decline in sex ratio in the 06
age group in States like Haryana, Punjab,
Maharashtra and Gujarat, which are economically
better off.”
1 (2003) 8 SCC 398
7
6.The Court referred to its earlier order dated 04.05.2001
in Centre for Enquiry into Health and Allied Themes
(CEHAT) v. Union of India
2
and taking note of various other
directions which find place in CEHAT v. Union of India
3
,
CEHAT v. Union of India
4
and CEHAT v. Union of India
5
,
issued the following directions:
“6. … (a) For effective implementation of the Act,
information should be published by way of
advertisements as well as on electronic media. This
process should be continued till there is awareness in
the public that there should not be any
discrimination between male and female child.
(b) Quarterly reports by the appropriate authority,
which are submitted to the Supervisory Board should
be consolidated and published annually for
information of the public at large.
(c) Appropriate authorities shall maintain the records
of all the meetings of the Advisory Committees.
(d) The National Inspection and Monitoring
Committee constituted by the Central Government
for conducting periodic inspection shall continue to
function till the Act is effectively implemented. The
reports of this Committee be placed before the
2 (2001) 5 SCC 577
3 (2003) 8 SC 409
4 (2003) 8 SCC 410
5 (2003) 8 SCC 412
8
Central Supervisory Board and State Supervisory
Boards for any further action.
(e) As provided under Rule 17(3), the public would
have access to the records maintained by different
bodies constituted under the Act.
(f) The Central Supervisory Board would ensure that
the following States appoint the State Supervisory
Boards as per the requirement of Section 16A:
1.Delhi, 2. Himachal Pradesh, 3. Tamil Nadu, 4.
Tripura, and 5. Uttar Pradesh.
(g) As per the requirement of Section 17(3)(a), the
Central Supervisory Board would ensure that the
following States appoint the multimember
appropriate authorities:
1. Jharkhand, 2. Maharashtra, 3. Tripura, 4. Tamil
Nadu, and 5. Uttar Pradesh.
7. It will be open to the parties to approach this
Court in case of any difficulty in implementing the
aforesaid directions.”
7.The aforesaid directions show the concern of this Court
as regards the strict compliance of the 1994 Act.
8.Prior to proceeding to note the nature of interim
directions that the Court has passed in the present case, it is
necessary to refer to two other decisions. In Voluntary
9
Health Association of Punjab v. Union of India and
others
6
(the 1
st
), the twoJudge Bench reflected on the sharp
decline in the female sex ratio and observed thus:
“6. …There has been no effective supervision or
followup action so as to achieve the object and
purpose of the Act. Mushrooming of various
sonography centres, genetic clinics, genetic
counselling centres, genetic laboratories, ultrasonic
clinics, imaging centres in almost all parts of the
country calls for more vigil and attention by the
authorities under the Act. But, unfortunately, their
functioning is not being properly monitored or
supervised by the authorities under the Act or to
find out whether they are misusing the prenatal
diagnostic techniques for determination of sex of
foetus leading to foeticide.”
9.The Court, after dwelling upon many an aspect,
proceeded to issue certain directions. In the concurring
opinion, direction No. 9.8 was elaborated and in that context,
the opinion stated:
“14. Female foeticide has its roots in the social
thinking which is fundamentally based on certain
erroneous notions, egocentric traditions, perverted
perception of societal norms and obsession with
ideas which are totally individualistic sans the
collective good. All involved in female foeticide
6 (2013) 4 SCC 1
10
deliberately forget to realise that when the foetus of
a girl child is destroyed, a woman of the future is
crucified. To put it differently, the present
generation invites the sufferings on its own and also
sows the seeds of suffering for the future
generation, as in the ultimate eventuate, the sex
ratio gets affected and leads to manifold social
problems. I may hasten to add that no awareness
campaign can ever be complete unless there is real
focus on the prowess of women and the need for
women empowerment.”
10.And again:
“16. It is not out of place to state here that the
restricted and constricted thinking with regard to a
girl child eventually leads to female foeticide. A
foetus in the womb, because she is likely to be born
as a girl child, is not allowed to see the mother
earth. In M.C. Mehta v. State of T.N.
7
, a threeJudge
Bench, while dealing with the magnitude of the
problem in engagement of the child labour in
various hazardous factories or mines, etc., speaking
through Hansaria, J., commenced the judgment
thus:
“1. I am the child.
All the world waits for my coming.
All the earth watches with interest to see what
I shall become.
Civilisation hangs in the balance,
For what I am, the world of tomorrow will be.
I am the child.
You hold in your hand my destiny.
7 (1996) 6 SCC 756
11
You determine, largely, whether I shall succeed
or fail,
Give me, I pray you, these things that make for
happiness.
Train me, I beg you, that I may be a blessing to
the world.”
The aforesaid lines from Mamie Gene Cole were
treated as an appeal by this Court and the Bench
reproduced the famous line from William
Wordsworth “child is the father of the man”. I have
reproduced the same to highlight that this Court
has laid special emphasis on the term “child” as a
child feels that the entire world waits for his/her
coming. A female child, as stated earlier, becomes a
woman. Its lifespark cannot be extinguished in the
womb, for such an act would certainly bring
disaster to the society. On such an act the collective
can neither laugh today nor tomorrow. There shall
be tears and tears all the way because eventually
the spirit of humanity is comatosed.”
11.Elaborating the concept of awareness, it has been
noted:
“33. It is difficult to precisely state how an
awareness camp is to be conducted. It will depend
upon what kind and strata of people are being
addressed to. The persons involved in such
awareness campaign are required to equip
themselves with constitutional concepts, culture,
philosophy, religion, scriptural commands and
injunctions, the mandate of the law as engrafted
under the Act and above all the development of
modern science. It needs no special emphasis to
12
state that in awareness camps while the deterrent
facets of law are required to be accentuated upon,
simultaneously the desirability of law to be followed
with spiritual obeisance, regard being had to the
purpose of the Act, has to be stressed upon. The
seemly synchronisation shall bring the required
effect. That apart, documentary films can be shown
to highlight the need; and instil the idea in the
mind of the public at large, for when the mind
becomes strong, mountains do melt.
34. The people involved in the awareness
campaigns should have boldness and courage.
There should not be any iota of confusion or
perplexity in their thought or action. They should
treat it as a problem and think that a problem has
to be understood in a proper manner to afford a
solution. They should bear in mind that they are
required to change the mindset of the people, the
grammar of the society and unacceptable beliefs
inherent in the populace.”
12.As the matter was not finally disposed of, it came up on
various dates and the Court issued further directions and
eventually the matter stood disposed of by judgment dated
08.11.2016 in Voluntary Health Association of Punjab v.
Union of India and others
8
(the 2
nd
). The Court reproduced a
8 (2016) 10 SCC 265
13
passage from Ajit Savant Majagvai v. State of Karnataka
9
which is as follows:
“4. It is unfortunate that in an age where people are
described as civilised, crime against “female” is
committed even when the child is in the womb as
the “female” foetus is often destroyed to prevent the
birth of a female child . If that child comes into
existence, she starts her life as a daughter, then
becomes a wife and in due course, a mother. She
rocks the cradle to rear up her infant, bestows all
her love on the child and as the child grows in age,
she gives to the child all that she has in her own
personality. She shapes the destiny and character
of the child. To be cruel to such a creature is
unthinkable.”
(emphasis supplied)
13.The Court referred to the observations made in Ajit
Savant Majagvai (supra) though they were made in a
different context because it had condignly stated the enormity
of the problem which has also reflections on female foeticide
that has affected the sex ratio. After recording various
directions issued in earlier judgments and scrutinizing the
provisions of the 1994 Act the Court held thus:
“40. It needs no special emphasis that a female
child is entitled to enjoy equal right that a male
9 (1997) 7 SCC 110
14
child is allowed to have. The constitutional identity
of a female child cannot be mortgaged to any kind of
social or other concept that has developed or is
thought of. It does not allow any room for any kind
of compromise. It only permits affirmative steps that
are constitutionally postulated. Be it clearly stated
that when rights are conferred by the Constitution,
it has to be understood that such rights are
recognised regard being had to their naturalness
and universalism. No one, let it be repeated, no one,
endows any right to a female child or, for that
matter, to a woman. The question of any kind of
condescension or patronisation does not arise.”
14.Speaking about the constitutional status of women and
the brazed practice of sex identification and female foeticide,
the Court stated:
“45. Before parting with the case, let it be stated
with certitude and without allowing any room for
any kind of equivocation or ambiguity, the
perception of any individual or group or
organisation or system treating a woman with
inequity, indignity, inequality or any kind of
discrimination is constitutionally impermissible.
The historical perception has to be given a prompt
burial. Female foeticide is conceived by the society
that definitely includes the parents because of
unethical perception of life and nonchalant attitude
towards law. The society that treats man and
woman with equal dignity shows the reflections of a
progressive and civilised society. To think that a
woman should think what a man or a society wants
her to think tantamounts to slaughtering her
choice, and definitely a humiliating act. When
15
freedom of free choice is allowed within
constitutional and statutory parameters, others
cannot determine the norms as that would amount
to acting in derogation of law. Decrease in the sex
ratio is a sign of colossal calamity and it cannot be
allowed to happen. Concrete steps have to be taken
to increase the same so that invited social disasters
do not befall on the society. The present generation
is expected to be responsible to the posterity and
not to take such steps to sterilise the birth rate in
violation of law. The societal perception has to be
metamorphosed having respect to legal postulates.”
15.The purpose of our referring to the earlier judgments is
only to emphasise upon the dignity, right and freedom of
choice of a woman. It needs no special emphasis to assert
that she has the equal constitutional status and identity. In
Vikas Yadav v. State of Uttar Pradesh & others
10
, while
dealing with honour killing, the Court has ruled:
“75. … Freedom, independence, constitutional
identity, individual choice and thought of a woman,
be a wife or sister or daughter or mother, cannot be
allowed to be curtailed definitely not by application
of physical force or threat or mental cruelty in the
name of his selfassumed honour. That apart,
neither the family members nor the members of the
collective has any right to assault the boy chosen by
the girl. Her individual choice is her selfrespect and
creating dent in it is destroying her honour. And to
impose socalled brotherly or fatherly honour or
10 (2016) 9 SCC 541
16
class honour by eliminating her choice is a crime of
extreme brutality, more so, when it is done under a
guise. It is a vice, condemnable and deplorable
perception of “honour”, comparable to medieval
obsessive assertions.”
16.That being the legal position with regard to status of
woman under the Constitution, we are required to analyse the
relevant statutory provisions of the 1994 Act. Section 22 of the
1994 Act that occurs in Chapter VII which deals with ‘Offences
and Penalties’ reads thus:
“Section 22. Prohibition of advertisement
relating to preconception 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 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
17
communicated any advertisement in any manner
regarding prenatal determination or preconception
selection of sex by any means whatsoever, scientific
or otherwise.
(3) Any person who contravenes the provisions of
subsection (1) or subsection (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, wallpainting, signal, light, sound, smoke
or gas.”
17.Section 23 deals with offences and penalties. Section 26
deals with offences by companies. It is as follows:
“Section 26. Offences by companies. — (1) Where
any offence, punishable under this Act has been
committed by a company, every person who, at the
time the offence was committed was in charge of,
and was responsible to, the company for the
conduct of the business of the company, as well as
the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against
and punished accordingly:
Provided that nothing contained in this sub
section shall render any such person liable to any
punishment, if he proves that the offence was
committed without his knowledge or that he had
18
exercised all due diligence to prevent the
commission of such offence.
(2) Notwithstanding anything contained in sub
section (1), where any offence punishable under this
Act has been committed by a company and it is
proved that the offence has been committed with
the consent or connivance of, or is attributable to
any neglect on the part of, any director, manager,
secretary or other officer of the company, such
director, manager, secretary or other officer shall
also be deemed to be guilty of that offence and shall
be liable to be proceeded against and punished
accordingly.
Explanation. —For the purposes of this section, —
(a) "company" means any body corporate and
includes a firm or other association of individuals,
and
(b)"director", in relation to a firm, means a partner
in the firm.”
Referring to the said provisions, it is submitted by Mr.
Sanjay Parikh, learned counsel for the petitioner that the
respondents cannot engage themselves what is prohibited
under the 1994 Act as it is their obligation to respect the law
in letter and spirit and this Court should direct the
respondentauthorities to take stringent action against search
engines.
19
18.At this juncture, it is relevant to state that the Court on
16.02.2017, after reflecting on the anguish expressed in
Voluntary Health Association of Punjab (the 2
nd
), adverted
to various aspects and observed thus:
“The present writ petition was filed in 2008 by the
petitioner, a doctor in the field of Public Health and
Nutrition, expressing his concern about the modus
operandi adopted by the respondent Nos.3 to 5 to
act in detriment to the fundamental conception of
balancing of sex ratio by entertaining
advertisements, either directly or indirectly or as
alleged, in engaging themselves in violation of
Section 22 of the Preconception and Prenatal
Diagnostic Techniques (Prohibition of Sex Selection)
Act, 1994 (for brevity, 'the 1994 Act'). Times without
number, this Court has dwelt upon how to curb the
said malady. In pursuance of our orders dated 5
th
July, 2016 and 25
th
July, 2016, an affidavit was filed
by the competent authority of the Ministry of
Electronics and Information Technology (MeitY),
Government of India.
Be it noted, when the matter was taken up on
19
th
September, 2016, it was submitted by Mr.
Ranjit Kumar, learned Solicitor General that a
meeting was held with the three software
companies, namely, Google India Private Limited,
Yahoo ! India and Microsoft Corporation (I) Pvt. Ltd.
and the companies were asked to respond to certain
questions. For the sake of completeness, it is
necessary to reproduce the said questions:
20
“(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
determination of sex or sex selection?
(c)Whether Respondents are ready to
block “autocomplete” failure for “key
word” searches which relates to pre
conception and/or prenatal
determination of sex or sex selection?
(d)Whether the words/phrases relating to
preconception 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”,
21
blocking of the “autocomplete”
feature for key word search & related
terms etc. relating to preconception
and prenatal determination of sex or
sex selection?
(g)Any other information as Respondents
would like to share?”
The responses to those questions were given
by the respondent Nos.3 to 5 and, thereafter,
delving into the submissions which were
assiduously canvassed by the learned counsel for
the respondents, the following order was passed:
“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 Preconception and Prenatal Diagnostic
Techniques (Prohibition of Sex Selection) Act,
1994 (for short, 'the Act'), specifically under
Section 22 of the said Act.
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
22
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
23
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”
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
24
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 emphasized that it has to be an in
house procedure/method to be introduced by
the Companies, and we so direct.”
19.On the basis of the order passed, an affidavit was filed by
the Union of India which reflected its understanding of Section
22 of the 1994 Act. Considering the same, on 16.11.2016, the
following order was passed:
“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
25
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.”
20.Thereafter the matter was heard at some length and
pending the debate, the Court directed as follows:
“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 thirtysix 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.”
26
In pursuance of the said order, the Union of
India has filed an affidavit of the Joint Secretary,
Ministry of Health and Family Welfare, Government
of India. Paragraphs 3 and 4 of the said affidavit
read as follows:
“3.In compliance of the Court's directive,
this Ministry has setup a single point contact
for the Nodal Agency to receive the complaints
on violation of Section 22 of PC & PNDT Act,
1994. Details of the Nodal Agency are as
under:
(i)Contact email address for nodal agency:
pcpndtcomplaints@nihfw.org
(ii)Nodal Officer: Dr. Chetan Chouhan,
Senior Medical Officer
(iii)Email id and Mobile number of Nodal
Officer: chetanchouhan@nihfw.org,
9818305703
(iv)Alternative Nodal Officer and contact
details:
Dr. Geetanjaly Singh,
Senior Medical Officer
Email: geetanjaly@nihfw.org
Mobile No.9968545794
4.That, further in compliance of directions,
for advertising in television, newspaper and
radio appropriate steps are being undertaken
and same shall be complied with at the
earliest.”
In view of the aforesaid affidavit, we direct the
Union of India to comply with the paragraph 4
within a week hence. It shall be clearly mentioned
27
that it is being done in pursuance of the order
passed by this Court.
At this juncture, Mr. Sanjay Parikh, learned
counsel appearing for the petitioner has drawn our
attention to the additional affidavit filed on behalf of
the respondent No.3, especially to paragraph 6(b)
and (c). They read as follows:
“6(b)There are innumerable activities banned
by law, e.g. using a bomb to kill people,
murder, rape, prostitution, pornography etc.,
nevertheless, there is no dearth of information
available under each of these heads in both the
offline and online world. Just because a
particular activity is morally repugnant, illegal
or prohibited under the provisions of the
Indian Penal Code and other applicable laws,
does not mean that everyone in the world is
disentitled from having any form of information
about the subject.
(c)This would be in complete violation of
Article 19(1)(a) of the Constitution of India,
which firstly includes the right to know,
secondly, right to receive and thirdly, right to
access the information or any content etc.”
Refuting the paragraph 6(b), learned Solicitor
General has submitted that he will file a response to
the same. His instant reaction was that the said
paragraph contravenes the letter and spirit of
Section 22 of the 1994 Act. Additionally, it is
contended by him that paragraph 6(b) is not saved
by Article 19(1)(a) of the Constitution of India as
asserted in paragraph (c). At this juncture, Ms.
Ruby Ahuja, learned counsel appearing for the
respondent No.3 has submitted that the said
respondent has no intention to disrespect or disobey
or even remotely think of contravening any law(s) of
28
this country and she undertakes to file a
clarificatory affidavit within three weeks.
It is necessary to take note of another
submission advanced by Mr. Parikh, learned
counsel with the assistance of Ms. Ninni Susan
Thomas, learned counsel for the petitioner. It is
urged by him that despite the order passed on 19
th
September, 2016, that the respondent Nos.3 to 5
shall undertake the exercise of principle of “auto
block”, the literature and writeups that would
tempt the people to go for male child which
ultimately lead to reduction of sex ratio, is still being
shown in certain websites. The said websites were
shown to Mr. K.V. Viswanathan, Mr. Anupam Lal
Das and Ms. Ruby Ahuja. The learned counsel
appearing for the respondents have submitted that
they will verify the same and the context.
Additionally, it is canvassed by Mr. Vishwanathan
with immense vehemence that it does not come
within the proposed list of words that find mention
in the order dated 19
th
September, 2016, and,
therefore, it cannot be construed as a violation. Be
that as it may.
We reiterate our direction dated 19
th
September, 2016, and further add that the
respondent Nos.3 to 5 shall appoint their “InHouse
Expert Body” which shall take steps to see that if
any words or any key words that can be shown in
the internet which has the potentiality to go counter
to Section 22 of the 1994 Act, should be deleted
forthwith.
Presently, we shall advert to the paragraphs 3
and 4 of the affidavit of the Union of India which we
have reproduced hereinabove. As the Nodal Agency
has already been constituted, it will be open to the
petitioner or any person that the Nodal Agency shall
29
take it up and intimate the respondent Nos.3 to 5 so
that they will do the needful. That apart, the “In
House Expert Body” that is directed to be
constituted, if not already constituted, shall on its
own understanding delete anything that violates the
letter and spirit of language of Section 22 of the
1994 Act and, in case there is any doubt, they can
enter into a communication with the Nodal Agency
appointed by the Union of India and, thereafter, they
will be guided by the suggestion of the Nodal Agency
of the Union of India. Be it clarified, the present
order is passed so that the respondent Nos.3 to 5
become responsive to the Indian law.
Let the matter be listed on 11
th
April, 2017, for
further hearing.”
21.On 13.04.2017 taking note of the submissions of the
learned counsel for the parties and Section 22 of the 1994 Act,
the Court passed the following order:
“Mr. Parekh has drawn our attention to certain
search results. One such result is 'Medical Tourism
In India'. It is pointed out by Mr. Parekh that it
deals with 'gender determination' in India which is
prohibited by the aforesaid provision.
At this juncture, Mr. Salve, Dr. Singhvi and
Mr. Das, learned counsel for the respondents
submitted that the key words are 'Medical Tourism
In India' which do not offend the provision. It is the
'Originator' of the blog who has used the offensive
words in the contents of the website and in such a
situation the Nodal Officer of the Union of India can
block the website as per the Act.
30
Be it noted, in pursuance of the order passed
by this Court, the respondents have appointed their
own 'Inhouse' experts. It is accepted by the learned
counsel for the respondents that they have never
indulged in any kind of advertisement as
contemplated under Section 22 of the Act and nor
do they have any kind of intention to cause any
violation of the said mandate. It is further accepted
by them that they will not sponsor any
advertisement as provided under Section 22 of the
Act. Learned counsel for the respondents would
contend, and rightly, that they do not intend to take
an adversarial position with the petitioner but on
the contrary to play a participative and cooperative
role so that the law made by the Parliament of India
to control sex selection and to enhance the sex ratio
is respected. It is further accepted by them that if
the Nodal Officer of the Union of India
communicates to any of the respondents with regard
to any offensive material that contravenes Section
22, they will block it.
Needless to say, the intimation has to be given
to the respondents. The Nodal Officers appointed in
the States under the Act are also entitled to enter
into communication with the respondents for which
they have no objection. The action taken report, as
further acceded to, shall be sent to the Nodal
Officer. Be it stated, the names of the Nodal Officers
have been mentioned in the affidavit filed by the
Union of India dated 11.11.2016.
At this juncture, it is necessary to state that
volumes of literature under various heads come
within the zone of the internet and in this virtual
world the idea what is extremely significant is 'only
connect'. Therefore, this Court has recorded the
concession of the respondents so that the sanctity of
the Act is maintained and there is no grievance on
31
any score or any count by anyone that his curiosity
for his search for anything is not met with and
scuttled. To elaborate, if somebody intends to
search for 'Medical Tourism In India' is entitled to
search as long as the content does not frustrate or
defeat the restriction postulated under Section 22 of
the Act. It is made clear that there is no need on the
part of anyone to infer that it creates any kind of
curtailment in his right to access information,
knowledge and wisdom and his freedom of
expression. What is stayed is only with regard to
violation of Section 22 of the Act. We may further
add that freedom of expression included right to be
informed and right to know and feeling of protection
of expansive connectivity.
As agreed to by learned counsel for the parties,
the let the matter be listed on 5.9.2017 so that the
outcome of this acceptance will be plain as day.”
22.The matter was called for hearing today, that is,
13.12.2017. It has been submitted by Mr. Parikh, learned
counsel for the petitioner, that despite the order passed by
this 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
32
constraining the word “content”. He has laid immense stress
on the “autoblock principle” and the concept of “key words”
and associated possibilities.
23.The said submissions are refuted by Dr. Abhishek Manu
Singhvi and Mr. K.V. Vishwanathan, learned senior counsel
appearing for Google India and Microsoft Corporation (I) Pvt.
Ltd. respectively. Mr. Anupam Lal Das, learned counsel
appearing on behalf of Yahoo ! India, would submit that
“content” can only be removed, once it is pointed out by the
Nodal Agency and further there are generators who can make
permutations and combinations, which will be very difficult on
the part of the search engine to remove.
24.At this juncture, Mr. Parikh has drawn our attention to
the paragraphs 12, 13, 14 and 19 of the AnnexureC to the
affidavit filed on behalf of the petitioner. They are extracted
below:
“12.Google also has automated systems that
analyze the tens of millions of new ads created by
advertisers every day. True and accurate copies of
publicly available webpages describing Google’s
33
automated review systems, as they appeared as of
December 10, 2014, at
http://googleblog.blogspot.com/2012/04/inside
viewonadsreview.html and http://adwords .
blogspot.com/2013/04/ahealthyadvertising
ecosystem.html are attached hereto as Exhibits 6
and 7, respectively; see also Exhibit 3.
13.Google also relies on its users and on other
advertisers to report improper advertisements. The
process for users and other advertisers to report
improper advertisements is accessible through a
publicly available webpage. A true and accurate
copy of that webpage, as it appeared as of December
10, 2014 at https://
support.google.com/adwordspolicy/answer/608450
?rd =1, is attached hereto as Exhibit 8.
14.In 2014, Google has already disapproved over
428 million advertisements (most of which never
generated a single impression), it has prevented ads
from linking to over one million websites, and it has
suspended or terminated over 900,000 advertiser
accounts for violations of Google’s AdWrods policies.
The vast majority of these actions were taken as a
result of Google’s proactive systems rather than as a
result of outside complaints.
19.In 2014 alone, Google disapproved over seven
million rogue pharmacy ads (that is, advertisers
lacking appropriate accreditation to run pharmacy
ads) and it disabled over 30,000 advertiser websites
for violating Google’s health care and medicines
policies. Most of these ads were removed before
they generated any ad impressions. In 2013, Google
disapproved over 4.5 million rogue pharmacy ads for
violating Google’s healthcare and medicines
policies.”
34
25.Ms. Ruby Ahuja, learned counsel assisting Dr. Abhishek
Manu Singhvi, learned senior counsel, appearing for the
Google India would submit that certain paragraphs which
have been put forth in the affidavit filed by Mr. Sanjay Parikh
are not relevant as they do not relate to paid advertisements.
Whether those paragraphs are relevant or not, we are directing
the respondents to find out a solution. We make it clear that
we have not expressed any opinion on the nature of the
solution, which the experts of the above mentioned entities
shall find and implement.
26.We have been apprised by Ms. Pinky Anand, learned
Additional Solicitor General appearing for the Union of India
that pursuant to the directions of this 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.
27.Mr. Parikh would submit that there are various other
ways by which contents can be removed so that the impact
would become evident.
35
28.Weighing the rivalised submissions at the Bar, we direct
the Nodal Agency and the Expert Committee to hold a meeting
and have the assistance of Mr. 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. We are using the word
“solution”, keeping in view our earlier orders and the
suggestions given by the competent authority of the Union of
India. 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
36
the suggestions or possibilities must be stated in writing
before the Committee so that appropriate and properly
informed measures are taken.
29.We are 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 1
st
) and Voluntary Health
Association of Punjab (the 2
nd
), does not remain a haunting
problem.
30.We are 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
37
a satisfactory solution instead of taking a contesting stand
before the Expert Committee.
31.With the aforesaid directions, the Writ Petition stands
disposed of. If there will be any further grievance, liberty is
granted to the petitioner to file a fresh writ petition. There
shall be no order as to costs.
....................................CJI.
[DIPAK MISRA]
……..……….......................J.
[A.M. KHANWILKAR]
………................................J.
[DR. D.Y. CHANDRACHUD]
New Delhi
December 13, 2017.
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