2016 INSC 0901 SUPREME COURT OF INDIA Sabu Mathew George Vs. Union of India & Ors. WP.(Civil)No.341/2008 (Dipak Misra and C.Nagappan,JJ.,) 19.09.2016 ORDER 1. Upon hearing the counsel the Court made the following 2. In pursuance of our orders dated 5 th 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 3. 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? 1 SpotLaw (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?" 4. 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. 5. 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. Ltd. Microsoft Corporation Yahoo India Pvt. Ltd. Yes India Pvt. Ltd. Yes i) Stated to have taken all (i) Stated that their possible steps to ensure Yes advertising policy prohibits compliance with PC-PNDT advertising that promotes Act. (Ref : Communication i) Informed their absolute pre-conception/ prenatal sex dated 19th July, 2016, Page selection techniques (Ref: No.43) compliance with the mandate Communication dated 29th July, 2016 page 78 no. (ii) Further submitted that the of Section 22 of PC & PNDT reply.1 Intent behind Sec.22 of the PCPNDT Act is to expressly Act being the prohibition of prohibit an advertisement that is a commercial advertisement in relation to communication and does not extend to other forms of conception and pre natal content including "Search results, videos, blogs or determination of sex or sex selection. (Ref.) Communication dated `st Aug. 2016, page no.63., para 2) ii) Submitted that the prohibition does not, however extend to any content outside of advertisements such as algorithmic search content images, the auto-complete function and the related search function that are 2 SpotLaw images"(Ref: algorithmically/ organically Yes. Communication dated 1st populated. Agrees to publish Warning Auguast, 2016, Page no.40, Message. para no.5. Yes. (Ref : Communication dated Yes. Agrees to issue a public 29th July 2016, Page no.80 Agrees to publish Warning service announcement on the reply.vi) Message at the top of the search result pages "key word search" result web (Ref : Communication dated Yes page. 1st Aug., 2016, Page no.64 (ef : Communication dated Para IV-4) 19th July, 2016, Page no.46, Pt.ii Yes Yes Agrees to block certain terms (i) undertakes to restruct its Agrees for disabling of Auto that directly relate to pre- auto-complete options and complete feature in natal gender detection & related searches options on in.yahoo.com that directly selection from appearing Bing India for the key words relate to pre-natal gender auto-complete suggestions or provided by/under MeitY's detection & selection as related search terms on the ( Ref: Communication dated local domain. Affidavit dated 15.09.2015 in 29th July, 2016, Page no. 80 para 4(a)-(u). (Ref: reply. Vii) ii) Further submits that this Communication dated 1st will remain an iterative Aug, 2016, Page no. 64, Para process, which will require V-6) updating. (Ref: Communication dated 19th July 2016, Page no.46 pt.i) (i) Has already blocked the (i) Has agreed to block the (i) Has agreed to block the "key word search terms" as "key word search terms" as list of keywords provided by provided by/under MeitY's provided by/under MeitY's the Supreme Court and the Affidavit dated 15.09.2015. Affidavit dated 15.09.2015 in MeitY (as per the Annexure para 4(a) - (u), however puts A) to disable the auto (ii) As there are vast numbers onus on the Government to complete. of permutation and provide additional key word combinations of blocked search terms in future and (ii) Informed that they update terms, it undertakes to review reserves its right to review this list of key words based and expand this list. the same. on any reported violations of (Ref : Communication dated (Ref : Communication dated the Act that are brought to 19th July 2016, Page no.45, 1st Aug, 2016, Page no.67, their attention in accordance Pt.ii) Para no.16 with due process of law. 3 SpotLaw (Ref : Communication dated 29th July 2016, Page no.80, Reply .V. iii) No No No (i) Submits that the said i) Submits that the said order i) Submits that the said order order has already been has already provided the link has already been placed as placed as part of relevant to the said order in its part of relevant Terms of Terms of Service/Policy advertisement policy pages Service / Page. Page. (ii) Submits that it maintains (Ref: Communication dated (ii) Submits that their home a clear Home Page with links 20th July, 2016, Page no.71, page has certain limitations, to only very specific Para no. 15-iii) business objectives, business information that is relevant to expectations, space and search engine services. (ii) Submits that displaying design constraints. As a results, and for legitimate (iii) Further submits that a the order or featuring any business reasons, they cannot Warning Message should be display such notices or order treated as sufficient to serve link to the order on the on the home page. the objective or spreading awareness on the issue. `Home Page'would (Ref: Communication to MeitY vide email dated 19th (iv) Informed that placing a interfere with the deliberate, July, 2016 from yahoo India message on the homepage Private Limited) would provide information highly thought out design on this issue to users regardless of their interest in and functional layout of the this topic (Ref : Communication dated Bing "Home Page" 19th July, 2016, Page no.47, Pt. D-I) .(iii) Microsoft informed that if the said court order is put up on the home page or a link to the same is featured on the page, it should have the effect of creating unnecessary concern / uncertainty amngst the larger community of users. Requested 5 weeks times. (Ref: Communication dated By September 15, 2016 20th July 2016, Page no.72, (Ref: Communication dated (Ref: Communication dated 19th July 2016, Page no.46, Para no.15 ­vi) on or before 29th July 2016, Page no.80, pt.ii) September 15, 2016 reply. vii) (Ref: Communication dated Yahoo India stated that they 1st Aug 2016, Page no.64, are responsible for managing Para IV.4) Microsoft undertakes to limiting the visibility of 4 SpotLaw suggestions on its auto- and operating complete platform and related searches platform, "in.yahoo.com". Yahoo India against the queries/ key has advertising policies that words indicated in the impose requirements for Government's Affidavit, by advertisements to appear on 31.12.2016 for the users in.yahoo.com. Yahoo India located in India. Microsoft informed that Yahoo.com also confirms that by (which is subject to US laws) 15.09.2016, it will share an is a website managed by update with the MeitY on the Yahoo! Inc., a separate legal progress made in this regard. entity incorporated in State 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) 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) 5 SpotLaw Ref. Google India letter (s) Ref. Microsoft India letter(s) Ref. Yahoo India dtd: 19th July,2016 and 1st dtd. 20Th July 2016 and 1st Aug., 2016 (annexed from communications dtd. 19Th August, 2016 (annexed from opage No.63 to 77) July 2016, 29th July 2016 page No.38-62) (annexed from Page No.78 to 88) Adwords- Will provide by 15.09.2016 in-legalpoc@yahoo-inc.com support@google.com 6. 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. 7. 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. 8. 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 6 SpotLaw 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 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" 9. 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 7 SpotLaw 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 do direct. 10. 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. 11. In the meantime, the competent authority of the Ministry of Health and Family Welfare, Government of India, shall file an affidavit. 8 SpotLaw