Linking PAN with Aadhaar – Update from the Supreme Court Hearing (Day – II)

The petitioners resumed their arguments in the case challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’). This provision mandates individuals to link their Permanent Account Numbers (PAN) with their Aadhaar number. The background to the case and our report from yesterday’s hearing can be found here.

The counsel for Maj. Gen. Vombatkere and Mr. Bezwada Wilson continued his arguments today. Today’s hearing commenced with pointing out that despite the government’s assurances, the Aadhaar framework was extremely porus and ineffective. That 34,000 enrolment agencies have been blacklisted was pointed out to substantiate this claim. It was also pointed out that biometric technology itself is fallible – instances of a hacker successfully copying the German Defence Minister’s fingerprints and Angela Merkel’s iris scans were also pointed out. Further, replies to RTI queries showed that more than eighty-five lakh Aadhaar numbers had been de-activated due to biometric and demographic errors discovered later. The counsel also apprised the bench of Aadhaar numbers being issued to dogs, trees, chairs and ‘Coriander s/o pulao’. Pertinently, he outlined concerns about Aadhaar data being leaked by several state and central government portals. These facts were brought to the Court’s attention to emphasise that the petitioners were conscientious objectors to the Aadhaar project and had serious apprehensions regarding its robustness, among other issues.

With the court’s permission, the counsel then revisited the Supreme Court’s interim orders in the main challenge to Aadhaar. He pointed out that due to the reference order, and the difficulties associated with forming a large bench, the case had essentially been ‘canned’ or ‘put in deep freeze’. However, he emphasised that at each stage, judges had been conscious of the gravity of issues involved and had consequently protected citizens with strong interim orders. This was done to protect individuals’ interest and prevent a situation of fait accompli. Particularly with respect to the order passed on 15 October 2015, it was pointed out that the Central Board of Direct Taxes was also a party before the Court in that interim order.

The counsel highlighted the graveness of the issues involved. If allowed, Aadhaar was likely to fundamentally alter the relationship between the citizen and the state and put every citizen on an ‘electronic leash’, enabling real-time surveillance. The Attorney General objected to this line of argument, contending that issues of privacy must not be raised in this case, in light of the pending reference.

On the issue of Section 139AA specifically, it was prayed that the provision must either be struck down or read down to make it voluntary. The submission was that the scheme of the Aadhaar Act was purely voluntary – it created a right to enrol for Aadhaar, but imposed no duty to do so. Reading sections 3 and 7 of the Act, he argued that in addition to being purely voluntary, the only detriment could be the denial of a benefit or service. Since paying tax was neither, one could not be compelled to part with their biometrics. He also argued that the Act and the enrolment process contemplated free and informed consent. When viewed in this light, the mandatory nature of Section 139AA was in direct collision with the scheme of the Aadhaar Act. Justice Bhushan interjected pointing out that the scheme of both statutes was different, and that made the legislation under challenge permissible. To this, it was submitted that a voluntary scheme could not be grafted onto the IT Act as a mandatory provision.

To support this contention further, it was contended that converting a right into a duty amounted to a colourable exercise of legislative power. Further, being coerced to enrol for a scheme that is essentially voluntary negates consent, rendering the legislation unworkable.

The petitioners’ counsel then apprised the Court regarding the penal consequences that would arise in the event of non-compliance with Section 139AA. These included higher Tax Deducted at Source (TDS), a penalty for failure to furnish income and a fine of Rs. 10,000 for not possessing a PAN card. Further, disabilities associated with not having a PAN under Section 114B were reiterated. On being queried by the bench whether PAN being mandated was the same as any other alternative (such as Aadhaar), it was argued that Aadhaar was intrusive to an unprecedented level. PAN, on the other hand, was not intrusive to one’s body. Routine transactions such as opening a bank account or purchasing a motor vehicle should not me made contingent on parting with biometrics.

The bench also quizzed the petitioners on the issue of giving up biometrics for passports and other similar circumstances. The counsel responded distinguishing such circumstances, arguing that in certain limited situations, such identification might be legitimate and necessary. This would be different from Aadhaar, where biometric authentication would become ubiquitous. Other circumstances would include identifying prisoners. Additionally, such information would be stored locally and only used for a limited purpose.

It was also argued that under Section 30, the Aadhaar Act itself defined biometrics as sensitive ‘personal’ data or information. Reference was also made to Section 43A of the Information Technology Act to emphasise that ‘personal’ information is of, and belongs to a person. Being intimate parts of the body, biometrics could not be considered a dominion of the state. Reliance was also placed on ‘On Jurisprudence’ by Salmond and the Oxford Handbook on Jurisprudence and Philosophy of Law to highlight that the right of bodily integrity included ‘exclusive possession and use of his or her own body as against everyone else’. The petitioner’s counsel went on the state that the Indian Constitution does not establish a totalitarian state but creates a state that is respectful of individual liberty and freedoms. Drawing from the preamble and emphasizing on the idea of a limited government, he said that the Indian Constitution is ‘not a charter of servitude’.

The petitioner’s counsel took the Court through a host of judgments for the proposition that the right to life extended to a right to protect one’s body and identity from harm. He cited landmark judgments such as National Legal Service Authority v. Union of India and Others (2014) 5 SCC 438 and Sunil Batra v. Delhi Administration and Others (1978) 4 SCC 494 to emphasise that personal liberty went beyond mere animal existence. He also touched on the context of bodily integrity, informed consent and self-determination as essential facets of Article 21, read with Articles 14 and 19.

As a final argument, it was argued that the object of the statute itself was discriminatory. Section 139AA discriminates between a homogenous class of assessees – individuals willing to part with biometrics to enrol for Aadhaar and those who’re unwilling to do so. The provision unreasonably discriminates against the latter by subjecting them to grave penal consequences, given that both categories are willing tax payers. A voluntary scheme could not, and should not deprive individuals of their choice.

The petitioners’ counsel also briefly touched upon the concept of ‘informational self-determination’ and argued that the state did not have any imminent domain regarding one’s body. Parting of sensitive features such as biometrics should be subject to one’s control and consent.

Arguments on behalf of the petitioners are likely to be concluded tomorrow. The Attorney General, representing the Central Government, is likely to advance arguments on Tuesday (May 2).

Linking PAN with Aadhaar – Update from the Supreme Court Hearing

The petitions challenging the constitutionality of Section 139AA of the Income Tax Act (‘IT Act’) came up for hearing before the Supreme Court today. Section 139AA makes it mandatory for individuals to quote their Aadhaar number when applying for a Permanent Account Number (PAN) as well as to file income tax returns. Section 139AA(2) stipulates that failure to intimate the Aadhaar number would automatically invalidate one’s existing PAN. Further, not linking the two also creates a legal fiction by which the provisions of the Act would apply ‘as if the person had not applied for the allotment of the PAN’.

Passed in March 2017, this IT Act amendment comes in the backdrop of several pending petitions challenging the constitutional validity of the Aadhaar project. Since 2013, the Supreme Court has passed multiple interim orders directing that Aadhaar remain purely voluntary till the pendency of these petitions. In August 2015, the Supreme Court had referred these matters to a larger bench, citing ambiguity in the Court’s jurisprudence on the fundamental right to privacy. Almost two years later, this bench remains to be constituted.

This background is pertinent given that the petitioners were forced to limit their submissions to the issue of linking Aadhaar numbers with PAN. The pending reference effectively ended up acting as a bar to assail the IT Act provision on the basis of privacy issues associated with Aadhaar.

The challenge constitutes of two separate writ petitions, filed by different sets of petitioners. The first petition has been filed by Mr. Binoy Viswam and the second by (Retd). Maj. Gen. Vombatkere and Mr. Bezwada Wilson, who are also petitioners in the main challenge to the Aadhaar project.

Arguments Advanced on behalf of Mr. Viswam:

The counsel for Mr. Viswam primarily advanced two arguments – that Section 139AA is unconstitutional as it violates and overrules several orders of the Supreme Court, and that it infringes Article 14 of the Constitution.

  • Section 139AA violates orders of the Supreme Court that were based on the Central Government’s undertakings – It was argued that by way of successive interim orders, such as on 23 September 2013, 11 August 2015, 15 October 2015 and 14 September 2016, the Court had directed that Aadhaar remain purely voluntary. The 15 October 2015 order specifically states that the Aadhaar scheme must remain voluntary ‘till the matter is finally decided by this Court one way or another’. Reference was also made to the Supreme Court’s recent order in Lokniti Foundation v. Union of India (6 February 2017), where it recorded the government’s submission that Aadhaar was voluntary for obtaining a telephone connection.

Based on these facts, it was argued that no one could be deprived of a service or benefit for want of an Aadhaar number. The bench observed that such undertakings could not preclude the Parliament from passing a law (such as that in issue). To this, the counsel responded stating that the state could not indirectly make Aadhaar mandatory under the IT Act while it remained voluntary under the parent Act, that is – the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (‘Aadhaar Act’). Section 7 of the Act, which stipulates that no benefit or service can be denied on the ground of not having an Aadhaar number, was read to support this contention.

Additionally, it was argued that these interim orders granted individuals a right – the right to not enroll for Aadhaar. This could not be taken away till the decided the matter conclusively. The counsel buttressed this contention citing precedent – Madan Mohan Pathak v. Union of India (1978) 2 SCC 50 and Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637, amongst others.

  • Section 139AA is violative of Article 14 because it unreasonably targets individuals out of all categories of assessees and for bring arbitrary – Besides individuals, entities such as companies, partnership firms, co-operative societies and trusts are also required to file returns on their income. As a result, it was argued that Article 139AA discriminated between assessees as it only adversely impacted individuals.

The argument advanced was that the twin test of permissible classification – that the classification is not based on an intelligible differentia, and that the differentia has no rational relation to the object sought to be achieved by the provision, were not satisfied in the present case. Given that the object of linking the Aadhaar and PAN is to address black money and weed out fakes, the provision fails to address nefarious activities carried through companies or trusts. This argument was later also advanced on the ground of proportionality.

This was met with some resistance by the bench, which observed that there was a natural distinction between natural and juristic persons and a distinction on that ground was not, discriminatory per se. It went on to observe that the law could be treated as a mere replacement of one system by another. The larger challenge to Aadhaar aside, it was difficult to assail the validity of a new or reformed system on this ground alone.

Counsel for Mr. Viswam then attempted to show that the provision is unconstitutional for being arbitrary. He submitted that such an unreasonable classification virtually resulted in ‘civil death’ for an individual. As per Section 114B of the IT Act, a PAN is necessary for eighteen essential transactions including opening a bank account and purchasing shares. If invalidated under Section 139AA(2), it would unreasonably restrict the right of individuals to carry on their business, as opposed to entities such as companies. Further, the individual would also be subject to additional penalties due to the legal fiction by which an individual is assumed never to have applied for a PAN. It was argued that this retrospective effect was highly prejudicial to individual assessees.

This was immediately objected to by the Attorney General, who argued that the legal fiction was not intended to be retrospective and would only apply from 1 July 2017, which is the deadline for linking Aadhaar with PAN.

To conclude, it was submitted that as per the data published by the Unique Identification Authority of India, enrolment rates for several states such were above 100%. This data was used to show that the problem of fakes or bogus cards existed even under the Aadhaar regime.

Post lunch, the counsel for (Retd.) Maj. Gen. Vombatkere and Mr. Wilson began arguments. He outlined his prayers before the Court – that Section 139AA be struck down, or alternatively, be read down to make Aadhaar a voluntary requirement.

As a preliminary point, he argued that neither of the petitioners had enrolled for Aadhaar. Being parties to the petitions challenging the Aadhaar project, they were conscientious objectors to the entire scheme. He proceeded to outline the broader issues in the challenge, with a view to provide the judges with some context. His submission rested on the idea of autonomy and bodily integrity associated with biometrics such as fingerprints and iris scans. Arguing that the Indian Constitution guaranteed a free, democratic society, he stated that the state had no dominion over core elements on one’s body and identity. As a result, the state could not coerce citizens to part with this information as a condition or as a bargain for enjoying rights guaranteed to them.

The arguments on behalf of (Retd.) Maj. Gen. Vombatkere and Mr. Wilson will continue on April 27 and will build on the specific issue of Article 139AA. The Attorney General is also likely to make his submissions on behalf of the Union Government.

Supreme Court hears the WhatsApp-Facebook Data Sharing Case

The special leave petition against the Delhi High Court’s ruling upholding WhatsApp’s updated privacy policy came up for hearing before a bench of five judges today. This policy is contentious because it allows WhatsApp to share valuable personal information of its users, including phone numbers, contact lists and profile pictures, with its parent company Facebook. As reported earlier, today’s hearing was to determine whether a bench of five judges can hear the case and to fix a date for the hearing.

During the course of arguments, the petitioners’ counsel focused on the need for regulating platforms such as WhatsApp and Facebook. It was his contention that the High Court should not have relegated the matter to a simple issue of a private contract between a user and a company. Arguing that such a proposition was overbroad, he contended that the Telecom Regulatory Authority of India and/or the Central Government must form comprehensive regulations to guarantee the rights of individuals (including the right to privacy) using such services. To emphasise on the need for regulation, he took the court through WhatsApp’s privacy policy, outlining the nature and extent of information collected and shared by it.

The Attorney General interjected requesting the Court to adjourn the matter for a few months. It was his submission that the Centre was in the process of formulating a data protection framework to regulate private entities collecting personal data.

For WhatsApp, it was argued that the service is popular only because of its insistence on privacy. It was submitted that no part of the content of any message was shared with any third party. The counsels for WhatsApp and Facebook also questioned the setting up of a constitution bench to hear this case as according to them, the case lacked a question of constitutional importance.

In the order passed by the Court today, this opposition to setting up a bench of five judges to hear the matter was recorded. However, Justice Mishra went on to state that this contention would be addressed at the time of the final verdict, signifying the Court’s intention to go ahead with the matter. The petitioners have been requested to file their propositions (/questions of law) by the 24th of April 2017. The case will be taken up for hearing again on the 27th of April 2017.

Update from the Supreme Court hearing in the WhatsApp-Facebook Data Sharing Case

In September last year, the Delhi High Court had upheld WhatsApp’s updated privacy policy, which allows it to share users’ personal information with its parent company, Facebook. Aggrieved by the Court’s decision, the petitioners approached the Supreme Court earlier this year.

On 6th February, the Supreme Court had fixed 12th May as the date for final adjudication of this case. This was one of the three cases listed for hearing before a constitution bench during the Court’s summer vacation. During today’s hearing, the counsel for WhatsApp sought a fresh date citing his unavailability in May. The bench, comprising of the Chief Justice of India and Justice D.Y. Chandrachud, observed that it would be inappropriate for them to reschedule the date as it was ultimately going to be heard and decided by another bench of the Supreme Court.

This raised the question whether the matter was required to be heard by a constitution bench at all. It was argued on behalf of WhatsApp that the case was a simple contractual matter and needn’t be referred to a larger bench. On the other hand, Facebook’s counsel contended that if the petitioners intended to pursue their claim based on a fundamental right to privacy under Article 21, the case could not proceed in light of the pending constitutional reference. (The question of whether a fundamental right to privacy exists, and its scope was referred to a larger bench in 2015).

The petitioners’ counsel contended that the privacy claim in this case arose from Article 19(1)(a), as the ability to communicate and speak freely was an inherent aspect of privacy. As a result, the pending constitutional reference should not be considered a bar for this case to proceed.

The bench reiterated its discomfort with deciding any of these issues. The case has now been listed for hearing before a constitution bench on 18th April to determine if it can be heard by five judges, and for fixing the date for hearing.

Is Your Aadhaar Number Confidential?*

Earlier this week, an agency entrusted with enrolling individuals under the Aadhaar scheme inadvertently published Mahendra Singh Dhoni’s personal information online. When it was pointed out this amounted to a gross violation of privacy, the government released a statement confirming that such publication was illegal and that the agency had accordingly been blacklisted. Another post indicated that several databases containing individuals’ Aadhaar numbers can be obtained by a simple online search. Over the last few months, the government has made the Aadhaar number mandatory for a host of benefits, including essential schemes such as the mid-day meal scheme for school children. As Aadhaar increasingly becomes the gateway to accessing benefits, the lack of clarity about how the number can be used, displayed or stored deserves further attention.

Aadhaar was introduced in 2009 as a way to plug leakages in the welfare delivery mechanism. It proposed to do so by creating a secure authentication mechanism that is capable of accurately verifying the identity of beneficiaries. Under the regulations framed under the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 (‘Aadhaar Act’), this can be done in three ways –

  • Demographic authentication – requires some demographic information (such as name or address) along with one’s Aadhaar number
  • One Time Password authentication – authentication through a One Time Password, sent to an individual’s registered mobile number, coupled with one’s Aadhaar number
  • Biometric authentication – uses biometrics along with the Aadhaar number

However, besides authentication, the Aadhaar number, usually printed on paper card and laminated has gained wide currency as a regular identification card. It is popularly used as a proof of identity, and photocopies of it are readily submitted where identity proof is required for compliance with certain legal obligations (such as hotel reservations, use of a cyber-café etc.). The wide circulation of information printed on these cards – Aadhaar numbers as well as basic demographic information such as one’s name and address, makes it susceptible to misuse.

To illustrate, if an entity opted to authenticate its customers using the ‘demographic authentication’ model, the easy availability of such information would make it exceptionally easy to avail the service under a false identity. Even for authentication using biometrics, it has been repeatedly argued that fingerprints can easily be copied and re-created. This points to a need for more restricted use of the Aadhaar number, and stringent safeguards for its storage and sharing.

The legal framework does not specifically prohibit the use of Aadhaar as an identity document, but news reports indicate that the UIDAI does regard this as being problematic. In the weeks following demonetisation, the UIDAI, through its Twitter handle, had ‘advised’ people not to share their Aadhaar numbers printed on such cards. It further warned that if a photocopy was being submitted, it should be self-attested and the purpose for sharing should be clearly stated to avoid misuse. This form of advisory, without any formal action to tackle concerns regarding misuse of Aadhaar data raises several concerns.

The Aadhaar (Sharing of Information) Regulations 2016 (Regulations) require that any individual or entity that collects the Aadhaar number must –

  • Not publish or publicly display it;
  • Ensure its security and confidentiality;
  • Ensure that numbers have been redacted before publishing any database that contains them;
  • Not transfer it in an unencrypted form, except when required for correction errors or grievance redressal; and
  • Not hold such data for longer than is necessary to achieve the desired purpose.

However, a blog post that has been shared widely shows that organisations including government departments have been callous in how they store Aadhaar information. Under the Regulations, this constitutes a violation of Section 29 of the Aadhaar Act. Such a lapse in storing Aadhaar information is punishable with imprisonment for a term which may extend to three years or a fine that may extend to ten thousand rupees or both (in case of a company, the fine may extend to one lakh rupees). However, it remains to be seen if the UIDAI will initiate any action against these entities.

This highlights another weakness of Aadhaar’s legal framework – it does not allow individuals to approach the court for any instance of data mismanagement. The complaint can only be initiated at the behest of the UIDAI. As a result, individuals whose data has been made public can only hope that the UIDAI will take action against erring entities. A recent report highlights that the UIDAI has only initiated criminal complaints in three out of 1390 complaints received by it so far.

Besides this major lacuna, what qualifies as adequate security for storing Aadhaar numbers remains unknown, as the regulations do not prescribe any standard. They are therefore inadequate to ensure that the Aadhaar number remains confidential.

So is the Aadhaar number confidential? The law certainly seems to suggest so, but its wide use as an identity proof indicates otherwise. It is apparent that the Aadhaar is popularly used as an identity document, contrary to its original purpose as a means for authentication or verification of identity. Despite being in contradiction with the scheme of the regulations, there has been little effort on the UIDAI’s part to initiate any course correction. It has been pointed out that one reason for this could be that it will reduce the public acceptability of Aadhaar, and public perception may take a hit. But it is extremely short-sighted to sacrifice individuals’ security and privacy in order to maintain public perception.

__________________________________________________________________

*Builds on important disclosures made by @St_Hill in a post here.

Two Takes on the Right to be Forgotten

Last month saw important developments in the discourse around the right to be forgotten. Two high courts, Gujarat and Karnataka, delivered judgments on separate pleas to have particular judgments either removed from online repositories and search engine results or have personal information redacted from them. The Gujarat High Court dismissed the petition, holding that there was no legal basis to seek removal of a judgment from the Internet. On the other hand, the Karnataka High Court ordered the Court’s Registry to redact the aggrieved person’s name before releasing the order to any entity wanting to publish it. This post examines both judgments to understand the reasoning and legal basis for denying or accepting a claim based on the right to be forgotten.

 Gujarat High Court

According to the facts reproduced in the order, the petitioner in this case had criminal charges filed against him for several offences, including murder, which ultimately resulted in an acquittal. At the appellate stage too, the petitioner’s acquittal was confirmed. The judgment was classified as ‘non reportable’ but nevertheless published on an online portal that reproduces judgments from all superior courts in India. It was also indexed by Google, making it easily accessible. Being distressed about this, the petitioner sought ‘permanent restrain of free public exhibition of the judgement…over the Internet’.

While dismissing the petition, the Court held that it was permissible for third parties to obtain copies of the judgment under the Gujarat High Court Rules 1993, provided their application was accompanied by an affidavit and stated reasons for requiring the judgment. Moreover, it held that publication on a website did not amount to a judgment being reported, as the classification of ‘reportable’ was only relevant from the point of view of law reports. In the Court’s opinion, there was no legal basis to order such removal and the presence of the judgment on the Internet did not violate the petitioner’s rights under Article 21 – from which the right to privacy emanates.

The Court’s dismissal of the argument that a non-reportable judgment is on an equal footing with a reportable judgment is problematic, but hardly surprising. In a 2008 decision, while describing the functions of a law reporter that was a party before it, the Supreme Court observed that “the [law report] publishes all reportable judgments along with non-reportable judgments of the Supreme Court of India” The distinction between reportable and non-reportable judgments was not in issue, but it does call for some introspection on the legal basis and rationale for classification of judgments. In an article on the evolution of law reporting in India, the constitutional expert M.P Jain explains that law reports were created as a response to Indian courts adopting the doctrine of precedent. This is the doctrine that binds lower courts to decisions of the higher courts. Precedent is created when a court lays down a new principle of law or changes or clarifies existing law. Consequently, the decision to make a ruling reportable (ideally) depends on whether it sets a precedent or not. Presumably then, there is a lesser public interest in having access to non-reportable judgments as compared to reportable ones.

While there is a clear distinction between publication in a law report and publication of the transcript of the judgment, the lack of a public interest element could have been taken into account by the High Court while deciding the petition. Moreover, it is unclear how reliance on the High Court Rules helped the Court decide against the petitioner. Third parties may be entitled to obtain a copy of a judgment, but the motivation behind a right to be forgotten is to only make information less accessible, when it is determined that there is no countervailing interest in its publication. At its root, the right is intended to enable citizens to exercise greater control over their personal information, allowing them to live without the fear that a single Google search could jeopardise their professional or personal prospects.

Karnataka High Court

Less than three weeks after the Gujarat High Court’s decision, the Karnataka High Court ordered its Registry to redact the name of the petitioner’s daughter from the cause title as well as the body of an order before handing out copies of it to any ‘service provider’. It accepted the petitioner’s contention that a name-wise search on a search engine might throw up the order, adversely affecting his daughter’s reputation and relationship with her husband. The Court clarified that the name need not be redacted from the order published on the Court’s official website.

Towards the end, it remarked that such an action was ‘in line with the trend in Western countries’ where the right to be forgotten exists as a rule in ‘sensitive cases involving women in general and highly sensitive cases involving rape or affecting the modesty and reputation of the person concerned’.

This statement is problematic. The right to be forgotten emanates from the right to privacy and data protection, which are both regarded as fundamental rights in Europe. Basing the right on ideas of honour and modesty [of women] creates some cause for concern. Further, an important distinction between this case and the one before the Gujarat High Court is that neither Google nor any website publishing court judgments were made parties to it. The claim was based on redaction of information from the source, rather than de-listing it from search engine results or deleting it from a website. This is interesting, because it allows us to think of the right to be forgotten as a comprehensive concept, instead of a singular right to de-list information from search engine results. It provides courts with a choice, allowing them to opt for the least restrictive means to secure an individual’s right to online privacy.

However, the lack of a clear legal basis to allow or deny such claims raises cause for concern. As is already apparent, different high courts are likely to take divergent views on the right to be forgotten in the absence of an overarching data protection framework that grants such rights and prescribes limits to them. In several cases, the right to be forgotten will trigger a corresponding right to freedom of expression and the right to know. The criteria to balance these important but competing claims should be in place for courts to be able to decide such requests in a just manner.

The Supreme Court Hears Sabu Mathew George v. Union of India – Another Blow for Intermediary Liability

The Supreme Court heard arguments in Sabu Mathew George v. Union of India today. This writ petition was filed in 2008, with the intention of banning ‘advertisement’ offering sex selective abortions and related services, from search engine results. According to the petitioner, these advertisements violate Section 22 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse Act), 1994 (‘PCPNDT Act’) and consequently, must be taken down.

A comprehensive round up of the issues involved and the Court’s various interim orders can be found here. Today’s hearing focused mainly on three issues – the setting up of the Nodal Agency that is entrusted with providing details of websites to be blocked by search engines, the ambit and scope of the word ‘advertisement’ under the PCPNDT Act and thirdly, the obligation of search engines to find offending content and delete it on their own, without a government directive or judicial order to that effect.

Appearing for the Central Government, the Solicitor General informed the Court that as per its directions, a Nodal Agency has now been constituted. An affidavit filed by the Centre provided details regarding the agency, including contact details, which would allow individuals to bring offending content to its notice. The Court was informed that Agency would be functional within a week.

On the second issue, the petitioner’s counsel argued that removal of content must not be limited only to paid or commercial advertisements, but also other results that induce or otherwise lead couples to opt for sex selective abortions. This was opposed by Google and Yahoo! who contended that organic search results must not be tampered with, as the law only bans ‘advertisements’. Google’s counsel averred that the legislation could never have intended to remove generic search results, which directly facilitate information and research. On the other hand, the Solicitor General argued that that the word ‘advertisement’ should be interpreted keeping the object of the legislation in mind – that is, to prevent sex-selective abortions. On behalf of Microsoft, it was argued that even if the broadest definition of ‘advertisement’ was adopted, what has to be seen is the animus – whether its objective is to solicit sex selective abortions, before content could be removed.

On the third issue, the counsel for the petitioner argued that search engines should automatically remove offending content – advertisements or otherwise, even in the absence of a court order or directions from the Nodal Agency. It was his contention that is was not feasible to keep providing search engines with updated keywords and/or results and the latter should employ technical means to automatically block content. This was also echoed by the Court. On behalf of all search engines, it was pointed out that removal of content without an order from a court or the government was directly against the Supreme Court’s judgment in Shreya Singhal v. Union of India. In this case, the Court had read down Section 79 of the Information Technology Act 2000 (‘IT Act’) to hold that intermediaries are only required to take down content pursuant to court orders or government directives. The Court seemed to suggest  that Shreya Singhal was decided in the context of a criminal offence (Section 66A of the IT Act) and is distinguishable on that ground.

Additionally, it was also pointed out that even if the respondents were to remove content on their own, the lack of clarity over what constitutes as an ‘advertisement’ prevents them from deciding what content to remove. Overbroad removal of content might open them up to more litigation from authors and researchers with informative works on the subject. The Court did not offer any interpretation of its own, except to say that the ‘letter and spirit’ of the law must be followed. The lack of clarity on what is deemed illegal could, as pointed out by several counsels, lead to censorship of legitimate information.

Despite these concerns, in its order today, the Court has directed every search engine to form an in-house expert committee that will, based “on its own understanding” delete content that is violative of Section 22 of the PCPNDT Act. In case of any conflict, these committees should approach the Nodal Agency for clarification and the latter’s response is meant to guide the search engines’ final decision. The case has been adjourned to April, when the Court will see if the mechanism in place has been effective in resolving the petitioner’s grievances.