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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

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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

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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)

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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

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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

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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 others1. 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

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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 India2 and taking note of various other

directions which  find place  in  CEHAT v.  Union of India3,

CEHAT v. Union of India4  and  CEHAT v. Union of India5,

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

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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

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Health Association of Punjab v. Union of India and

others6 (the 1st), 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

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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

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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

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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 others8 (the 2nd). The Court reproduced a

8 (2016) 10 SCC 265

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passage from Ajit Savant Majagvai v. State of Karnataka9

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

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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

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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 & others10  , 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

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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

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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.  

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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 2nd), 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 5th

July, 2016 and 25th 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 19th  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:­

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“(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”,

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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

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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

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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

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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

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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.”

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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

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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 19th

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 19th  September, 2016, and, therefore, it cannot be construed as a violation.  Be that as it may.   

We reiterate our direction dated 19th

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

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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 11th 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.  

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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

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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

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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

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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.

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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

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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 1st)  and  Voluntary Health

Association of Punjab (the 2nd), 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

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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.