Supreme Court Directs Search Engines to Curb Sex Selection Ads: Dr. Sabu Mathew George vs. Union of India (2017)

Introduction

Date of the Judgment: 13 December 2017

Citation: [Not Available in Source]

Judges: Dipak Misra, CJI, A.M. Khanwilkar, J., Dr. D.Y. Chandrachud, J.

Can search engines be held responsible for the proliferation of online content that promotes sex selection, thereby violating Indian law? The Supreme Court of India addressed this critical question in a public interest litigation, focusing on the effective implementation of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (the 1994 Act). This case highlights the ongoing struggle to combat female foeticide and the misuse of technology to perpetuate gender discrimination. The judgment was delivered by a three-judge bench comprising Chief Justice Dipak Misra, Justice A.M. Khanwilkar, and Justice Dr. D.Y. Chandrachud.

Case Background

Dr. Sabu Mathew George, a public-spirited individual, filed a Writ Petition seeking directions for the effective implementation of the 1994 Act. The petition specifically targeted the Union of India, the Ministry of Health and Family Welfare, the Ministry of Communication and Information Technology, and major search engines like Google India, Yahoo! India, and Microsoft Corporation (I) Pvt. Ltd. The petitioner’s concern was the promotion of sex selection through advertisements on these search engines, which contravenes the 1994 Act. The core issue was the increasing female foeticides and the resultant imbalance of sex ratio in the country.

Timeline

Legal Framework

The Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, was enacted to combat the misuse of pre-natal diagnostic techniques for sex determination, which leads to female foeticide. The Act aims to prohibit sex selection before or after conception and to regulate pre-natal diagnostic techniques for detecting genetic abnormalities, metabolic disorders, chromosomal abnormalities, congenital malformations, or sex-linked disorders.

Section 22 of the 1994 Act, titled “Prohibition of advertisement relating to pre-conception and pre-natal determination of sex and punishment for contravention,” is central to this case. It states:

“(1) No person, organisation, Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, including Clinic, Laboratory or Centre having ultrasound machine or imaging machine or scanner or any other technology capable of undertaking determination of sex of foetus or sex selection shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement, in any form, including internet, regarding facilities of pre-natal determination of sex or sex selection before conception available at such Centre, Laboratory, Clinic or at any other place.”

“(2) No person or organisation including Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic shall issue, publish, distribute, communicate or cause to be issued, published, distributed or communicated any advertisement in any manner regarding pre-natal determination or pre-conception selection of sex by any means whatsoever, scientific or otherwise.”

“(3) Any person who contravenes the provisions of sub-section (1) or sub-section (2) shall be punishable with imprisonment for a term which may extend to three years and with fine which may extend to ten thousand rupees.”

The explanation to Section 22 defines “advertisement” broadly to include any notice, circular, label, wrapper, or other document, including advertisements through the internet or any other media in electronic or print form, and any visible representation made by means of hoarding, wall-painting, signal, light, sound, smoke, or gas.

Section 26 of the 1994 Act deals with offences by companies, stating that if a company commits an offence under the Act, every person in charge of the company’s business at the time of the offence is deemed guilty, unless they can prove the offence was committed without their knowledge or that they exercised due diligence to prevent it.

Arguments

The petitioner, Dr. Sabu Mathew George, argued that search engines like Google India, Yahoo! India, and Microsoft Corporation (I) Pvt. Ltd. were violating Section 22 of the 1994 Act by allowing advertisements and content that promoted sex selection. The petitioner contended that these search engines, being intermediaries, have an obligation to respect the law and should take stringent action against such content. The petitioner emphasized that the term “advertisement” should be given an expansive meaning and should not be narrowly construed.

The search engine companies argued that they were not directly involved in creating the content, and their role was limited to providing a platform for information. They contended that they could only act on specific content when it was brought to their notice by the Nodal Agency. They also argued that blocking all information related to sex selection would violate Article 19(1)(a) of the Constitution of India, which guarantees freedom of speech and expression, including the right to know, receive, and access information. The search engines also stated that they have never indulged in any kind of advertisement as contemplated under Section 22 of the Act.

The Union of India submitted that Section 22 of the 1994 Act is very wide and does not confine only to commercial advertisements. The government also stated that the intention of law is to prevent any message/communication which results in determination/selection of sex by any means whatsoever, scientific or otherwise.

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame specific issues in a dedicated section of the judgment. However, the core issues that the Court addressed can be summarized as follows:

• How to effectively implement Section 22 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, to curb the promotion of sex selection through online advertisements and content.
• Whether search engines can be held responsible for the content displayed on their platforms that violates the 1994 Act.
• The extent to which the search engines are obligated to proactively monitor and remove content that promotes sex selection.
• The balance between the right to freedom of speech and expression and the need to prevent sex selection.

Treatment of the Issue by the Court

Authorities

The Supreme Court referred to several of its earlier judgments and legal provisions to emphasize the importance of preventing female foeticide and upholding the rights of women. These authorities were used to establish the context and the legal basis for its directions.

Judgment

The Supreme Court disposed of the writ petition with several directions aimed at ensuring the effective implementation of the 1994 Act. The Court emphasized that the search engines have a responsibility to prevent the promotion of sex selection on their platforms.

The Court’s view on the authorities:

✓ Centre for Enquiry into Health & Allied Themes (CEHAT) and others v. Union of India and others (2003) 8 SCC 398*: The Court referred to this case to highlight the anguish over discrimination against the girl child and how sex selection adds to the said adversity.

✓ Voluntary Health Association of Punjab v. Union of India and others (2013) 4 SCC 110*: The Court referred to this case to reflect on the sharp decline in the female sex ratio and the need for effective supervision.

✓ Voluntary Health Association of Punjab v. Union of India and others (2016) 10 SCC 265*: The Court referred to this case to reiterate the need to protect the rights of the female child.

✓ Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110*: The Court referred to this case to highlight the enormity of the problem of female foeticide.

The Court directed the following:

• The Union of India shall continue with the Nodal Agency and give due advertisement in television, newspapers, and radio.
• Search engines must constitute their “In-House Expert Body” to identify and delete content that violates Section 22 of the 1994 Act.
• The Nodal Agency and the Expert Committee shall hold a meeting with the representatives of Google India, Yahoo! India, and Microsoft Corporation (I) Pvt. Ltd. to find a holistic solution.
• The Nodal Agency and the Expert Committee shall have the assistance of Mr. Sanjay Parikh and his team.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was heavily influenced by the need to protect the rights of the girl child and to combat the practice of female foeticide. The Court emphasized the importance of upholding the mandate of the 1994 Act and preventing the misuse of technology to perpetuate gender discrimination. The Court’s concern was also evident in its repeated references to the declining sex ratio in the country and the need for a collective approach to address this issue.

The Court’s reasoning was also influenced by the understanding that search engines, as intermediaries, have a responsibility to ensure that their platforms do not promote illegal activities. The Court rejected the argument that search engines are merely passive platforms and emphasized their role in upholding the law.

The Court also recognized the need to balance the right to freedom of speech and expression with the need to prevent sex selection. The Court clarified that the restrictions imposed on search engines are only with regard to the violation of Section 22 of the 1994 Act and do not curtail the right to access information.

The Court’s reasoning can be logically represented as follows:

Key Takeaways

• Search engines are not mere passive platforms but have a responsibility to prevent the promotion of sex selection on their platforms.
• The term “advertisement” under Section 22 of the 1994 Act is to be given an expansive meaning.
• The “auto-block” principle should be strictly implemented by search engines to prevent the display of content that violates the 1994 Act.
• The Nodal Agency and the Expert Committee are crucial for monitoring and removing offending content.
• The right to freedom of speech and expression is not absolute and does not extend to promoting illegal activities like sex selection.
• There is a need for a collective approach involving the government, search engines, and civil society to address the issue of sex selection.

Directions

The Supreme Court issued the following directions:

• The Union of India shall continue with the Nodal Agency and give due advertisement in television, newspapers, and radio.
• Search engines (Google India, Yahoo! India, and Microsoft Corporation (I) Pvt. Ltd.) must constitute their “In-House Expert Body” to identify and delete content that violates Section 22 of the 1994 Act.
• The Nodal Agency and the Expert Committee shall hold a meeting with the representatives of the search engines to find a holistic solution.
• The Nodal Agency and the Expert Committee shall have the assistance of Mr. Sanjay Parikh and his team.

Specific Amendments Analysis

There is no specific amendment analysis in the judgment.

Development of Law

The ratio decidendi of this case is that search engines, as intermediaries, have a responsibility to ensure that their platforms do not promote illegal activities like sex selection. This judgment clarifies that the term “advertisement” under Section 22 of the 1994 Act is to be given an expansive meaning, and the search engines must take proactive measures to prevent the display of content that violates the Act. This case reinforces the idea that technology companies cannot be passive bystanders when their platforms are used to perpetuate illegal and harmful practices.

Conclusion

The Supreme Court’s judgment in Dr. Sabu Mathew George vs. Union of India is a significant step towards curbing the promotion of sex selection through online platforms. By holding search engines accountable and directing them to take proactive measures, the Court has emphasized the need for a collective effort to combat female foeticide and uphold the rights of the girl child. The judgment clarifies the scope of Section 22 of the 1994 Act and sets a precedent for how technology companies must respond to the challenge of illegal content on their platforms.