Banning Pre-Natal Sex Determination Advertisements Does Not Curtail Right to Internet Access: Supreme Court

Citizens have a right to have Internet access and banning advertisements on pre-natal sex determination on websites do not curtail such rights, the Supreme Court said on Thursday.

The court noted that search engines Google, Yahoo and Microsoft have accepted before it that they would not sponsor any such advertisements and would play a "cooperative role" so that the law enacted by Parliament to prevent sex selection and enhance the sex ratio is "respected".

These search engines told a bench headed by Justice Dipak Misra that they have never indulged in any such advertisement as contemplated under section 22 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, and nor do they have any kind of intention to cause any violation of the legislation.

Section 22 of the 1994 Act pertains to prohibition of advertisements relating to pre-natal determination of sex and punishment for its contravention.

They told the bench that if the nodal officer, appointed by the central government, communicates to them regarding any offensive material posted on the Internet which is in contravention of section 22, they would block it.

"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," the bench, also comprising Justices A M Khanwilkar and M M Shantanagoudar, said.

"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," it said.

The apex court observed that "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".

The bench also said it has recorded the concession of the Centre as well as the search engines so that sanctity of the Act is maintained and there is no grievance to anyone that his curiosity for searching anything has been 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 noted in its order.

During the hearing, Solicitor General Ranjit Kumar, who appeared for the Centre, said the government's stand was very clear that search engines and websites cannot facilitate such advertisements.

"We have appointed nodal officers in each states. Hosting such advertisements is a penal offence under the Act," he said, adding that a central nodal officer has also been appointed to look after the matter.

"Anything which violate Indian law has to be deleted or taken off by these intermediaries," he said.

Advocate Sanjay Parikh, representing the petitioner, told the bench that Google, Microsoft and Yahoo were bound to follow scrupulously what is being stated in section 22 of the Act and nothing offensive can be hosted on the websites.

Senior advocate Harish Salve, representing Microsoft, told the bench that they were completely co-operating with the government and were acting as per the directions of the apex court.

The counsel representing Google and Yahoo also said that they were following the directions of the court and were fully co-operating with the government.

When the petitioner raised the issue of declining sex ratio, the bench said, "We are on a different platform. We are talking about a concept of pre-censorship. Power of judicial review is extremely limited and courts must be very conscious about it".

The bench also noted in its order the submission advanced by the counsel for search engines that in pursuance to the order, they have appointed their own 'in-house' experts to deal with the situation.

"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 co-operative role so that the law made by the Parliament of India to control sex selection and to enhance the sex ratio is respected," it said.

"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," the bench said and posted the matter for further hearing on September 5.

The apex court had on February 16 warned that the declining numbers of the girl child was a "disastrous signal for mankind", and directed Google, Yahoo and Microsoft to set up in-house expert bodies "forthwith" to ensure deletion of materials which went against Indian laws prohibiting pre-natal sex determination.

The court was hearing a petition by Sabu Mathew George, a doctor, who is seeking the court's intervention in view of the falling sex ratio in the country.