A Blanket Ban on Porn will violate Articles 19 & 21 of the Constitution: Government informs the Supreme Court

On 5th May, 2014 the Supreme Court bench of Justices B.S. Chauhan and and J. Chelameswar heard the petition filed by Kamlesh Vaswani, requesting the court to block all websites with pornographic content and to direct intermediaries to proactively monitor and block all pornographic content on the Internet.

Additional Solicitor General (ASG), Mr. K.V. Vishwanathan appearing for the Government stated during his oral arguments that the blocking mechanism exists under section 69A of images the Information Technology Act (‘IT Act’). However, under the present mechanism, websites can be blocked only upon fulfilling certain parameters and after following the procedure laid down in section 69A read with Information Technology (Procedure and Safeguards for Blocking for Access of Information by Public) Rules, 2009. It was further stated by the ASG that the various grounds under section 69A on which content can be blocked does not include obscenity. 

Mr. K.V. Vishwanathan then explained that a blanket ban is technically not feasible and that if ISPs try to block content by search words even ‘good literature’ will be blocked. He illustrated this by stating that if the search word is sex, everything containing the word sex on the internet will be blocked. He also brought the attention of the court to problem of over-blocking by stating that a blanket ban may lead to a block on medical literature. All this, the Government pointed out, will be a violation of Article 19(1)(a) of the Constitution.

The Government also argued that proactively monitoring and blocking content will be a violation of right to privacy under Article 21 of the Constitution, as the ISPs will have to go through all the content over the internet to screen for objectionable content including VoIP calls. Additionally, the ASG informed the court that under Section 88 of the IT Act, the Government has already constituted a Cyber Regulations Advisory Committee and either the committee on its own or a sub-committee appointed by it can come up with a time bound report about the whole issue.

By way of constructive suggestions, the ASG submitted before the Court that, pornographic material can be blocked by pre-installing specific software in all the computers. However, it will need to examined as to how the government can direct all the manufacturers to install it.

Advocate Vijay Panjwani appeared for Mr. Kamlesh Vaswani while respondent no. 4, ISPAI was represented by advocates Rahul Narayan and Shivain Vaidalingam. The Court has directed the matter to be listed after two weeks.

(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University, Delhi)

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One thought on “A Blanket Ban on Porn will violate Articles 19 & 21 of the Constitution: Government informs the Supreme Court

  1. Pingback: Find ways to curb Child Pornography: SC | Centre for Communication Governance at National Law University, Delhi

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