On 27th January, 2014 the Supreme Court heard the petition filed by Kamlesh Vaswani requesting the court to pass an order to block websites with pornographic content in the country. The petition seeks among other things, to make viewing pornography a non-bailable and a cognizable offence. (Here and here are television discussion on the PIL, featuring the petitioner Mr. Kamlesh Vaswani) Currently, while the creation and distribution of porn are criminalised in India, consumption is not.
Of the 5 respondents only the Internet Service Providers Association of India (ISPAI) has filed a reply. The Supreme Court has therefore asked the other respondents (Union of India, Ministry of Communications & Information Technology, Ministry of Information & Broadcasting and the Department of Telecom) to file their within 3 weeks. The bench of Justices BS Chauhan and J Chelameswar has also asked the respondents for a specific response addressing child pornography over the internet in their reply. During the hearing the lawyer appearing for the Union of India informed the court that they have requested for composition of a technical committee, to provide them with guidance on the issue. In a previous hearing the government had informed the court that it would find it difficult to block international porn sites viewable in India.
ISPAI has stated in its reply that there is “no unanimously accepted definition of pornography and the boundaries of the same are amorphous.” ISPAI’s response highlights the problem and states that “one man’s pornography is another man’s high art”, using AIDS awareness websites and photographs of Khajuraho as examples of how explicit material is not always pornography. ISPAI has stated in its reply that “ISPs neither create content of any sort, nor do they own, promote, modify or edit it. They are mere authorized service providers who provide customers access to internet. ISPs are mere conduits and they cannot be made liable for the contents they do not own. It would be akin to making liable telecom companies for conversations people have on their network”.
ISPAI has argued in its written response that ISP’s ought not block without specific orders from the courts or government because “such blocking would tantamount to pre-censorship of contents without authority of law and could unfairly limit the fundamental rights of the customers and may expose them to liability under civil laws”.
Advocates Rahul Narayan and Shivain Vaidalingam appeared for ISPAI in the matter and the court has fixed 10th March 2014 as the next date of hearing.
(Sarvjeet is a Project Manager and Research Fellow at the Centre for Communication Governance at National Law University Delhi)