We are not a totalitarian state and cannot be asked to moral police: AG tells SC in the Porn Petition

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet and was used conveniently by the Government to order the disablement of over 850 website last week came up before the bench headed by the Chief Justice today.

Mr. Mukul Rohatgi, the Attorney General of India represented the Union along with ASG Ms. Pinky Anand. He stated that after the last hearing the petitioners gave a list of 857 websites to the Government, which were blocked by the Department without any verification. Subsequently, the Department verified the list and then asked the Internet Service Providers to only block websites with child porn.

He said that if someone wants to watch porn in the confines of their bedroom how can we interfere. He subsequently stated that there are various kinds of pornography- hard-core, soft, violent porn. At this juncture the Chief Justice quipped ‘Mr. Rohatgi how do you know all this’, to which the AG replied ‘your lordship I have not watched it, but I do plan to, since that is the only way to understand the concerns, moreover my juniors are very tech savy’. He also stated that pornography is a grey area and there are no straight answers.

The AG argued that the geographical frontiers are no frontiers on the Internet and it is a borderless space, and it is very difficult to block anything on it. He said that if we block ten sites another five would pop up with new names at new locations.

He again reiterated that if someone wants to watch this in the privacy of their bedroom, the state cannot be a moral police or enter peoples bedrooms. He added that there are issues of freedom of speech and expression under article 19(1)(a) involved in the case.

The AG stated that the Government is committed to Internet freedom and has launched the ambitious Digital India project, which aims to connect crores of people to the Internet. He added that the MyGov website is becoming the converging point of lots of people to send ideas to the Government and connect with it.

He stated that the petitioner’s argument that the law as it stands today is ineffective and thus unconstitutional is not a valid argument. He cited an example of a case of customs officers in Mumbai who were booked as they were watching porn within a bungalow and the High Court acquitted them, as that is not an offence. He stated that the case is pending before the Supreme Court.

The AG submitted that there is no doubt that child porn has to be banned and the Government will make every effort to do that. However, he added that effective banning on the Internet is very difficult. He also stated that sites these days pick up profiles of the surfer and then the person gets targeted advertising, which the Government cannot block and we are not willing to take up the mantle of moral policing.

He stated that as of today our position is that child porn needs to be banned, beyond that if someone gives us a site which has child porn we will block it or block sites based on court orders as laid down in Shreya Singhal. Beyond that this issue is a larger debate, which can happen in court or outside it in Parliament or in the society.

At this point Mr. Vaswani’s lawyer, Vijay Panjwani stated that a criminal activity is a criminal activity whether in public or in private and transmission of pornography is a criminal activity, which the ISPs are doing. He added that we have the technology to block these sites, parties including people from Banaras Hindu University have filed affidavits in the case stating the same. He said that there is a seven-years imprisonment for anyone transmitting absence content under the Information Technology Act, but we are not even asking for that, we are just asking for the sites to be blocked.

The Attorney General interrupted at this point and stated that today every computer has a child/parental lock and can be used to limit children’s access to such sites and there are other softwares being developed for mobiles and other devices.

He added that the best filter is not to block this content at the gateway but if individuals want they can do it on their devices, as if two adults want to watch it for entertainment we cannot enter their houses. The AG further stated that we cannot become a totalitarian state and there is right to information and entertainment under article 19(1)(a).

Ms. Meenakshi Arora, Senior Advocate being briefed by AoR Mr. Rahul Narayan appearing for the Internet Service Providers Association of India argued that there is a conflict between the two orders issues by the DoT on 31st July and 4th August 2015. She added that ISPs are not responsible for the content added by intermediaries.

The first order asked ISPs to disable 857 websites, but the subsequent orders asked us to unblock 857 URLs. She stated that there is a difference between a website and a URL and added that we will block whatever we are asked to under the law and our license agreements but we need to have clear instructions regarding what needs to be blocked. The Government cannot ask us to identify and block content and that is unreasonable burden on the ISPs.

The CJI speaking for the bench stated that we have never passed any order in this case or asked for any blocking. The AG agreed with the Court and stated that since there has been no order by the Court, he will ask the Department of Telecom (DoT) and Department of Electronics and Information Technology (DeitY) to meet with ISAPI and sort out the difficulties.

The AG informed the court that they are working on some self-regulation mechanisms and requested to court to list the matter in October.

(Sarvjeet is a Senior Fellow & Project Manager at the Centre)

The PornBan debate: our archived pieces on the subject

Sadly, the debate on banning pornography has not moved very far over the last two years. Here are pieces that CCG has published on the subject over time:

  1. The problem with blanket bans of  online pornography: filtering online content
  2. Blocking online pornography: who should make constitutional decisions about speech
  3. Porn and keyword filters, and how we will be sacrificing our public discourse (within this piece on the AIB petition)

Busy Day for Free Speech in the Supreme Court: Defamation and Pornography

Subramanian Swamy v. Union of India

The Supreme Court bench of Justices Dipak Misra and Prafulla Pant today heard a bunch of almost two-dozen petitions, which challenge the constitutional validity of criminal defamation (sections 499 and 500 of the Indian Penal Code). Among the more prominent ones are petitions from Mr. Subramanian Swamy, Mr. Rahul Gandhi, Mr. Rajdeep Sardesai and Mr. Arvind Kejriwal, whose government incidentally days after him challenging the validity of criminal defamation came out with a circular “to deal with instances of defamatory imputations covered under Sec 499/500 of IPC against the CM and ministers”.

Attorney General Mr. Mukul Rohatgi and Additional Solicitor General Mr. PS Narasimha represented the Union of India. The Attorney General at the outset requested the court to refer the matter to a constitutional bench as per Article 145(3) of the Indian Constitution. The bench however did not seem very inclined and provided examples of multiple cases in the recent past including Suresh Kumar Koushal and Shreya Singhal which were decided by a two judge bench. In response the Attorney General submitted that if in other instances the correct course was not followed, that should not be a reason to not refer the matter in the present case. Mr. TR Andhyarujina, who has been appointed as an amicus in the case also supported the Attorney General’s contention. The Court has allowed the Union of India to raise this issue in their final arguments and has agreed to answer it in the final judgment.

The bench clarified that it will only be dealing with the issue of constitutionality of sections 499 and 500 of IPC and will not look into how these sections are applied. The bench also stated that it cannot abolish a provision as that is the job of the parliament, it can only look at the constitutionality of the provision.

Mr. Andhyarujina informed the court that among the various terms mentioned under Article 19(2) of the Constitution there is no judgment on the issue of defamation and what the court needs to decide is whether the right to freedom of speech and expression as guaranteed under Article 19(1)(a) is inhibited by defamation being a penal provision.

The Attorney General also dealt with the issue of criminal and civil defamation and stated that a civil suit for damages in such instances keeps pending for years and there is hardly any award provided, nor is there any deterrence effect whereas criminal provision at least has some deterrence effect. He also compared the situation to the English system and was supported by Mr. Andhyarujina and both of them stated that unlike the India system its easy to approach the civil court for damages in such cases and obtain a relief whereas in India the system should be kept in mind. However, the bench reiterated that it will only examine the constitutionality of the sections and the system that exists for civil defamation and the time taken to decide such suits will have no bearing on that.

Mr. Andhyarujina stated that theses sections are used as an inhibitor for freedom of speech and expression specially in political context, to which the court stated that different people have different views regarding the validity of the provisions under Article 19(2) including the two amicus appointed by the Court and the matter should be carefully considered.

The bench specifically asked the amicus to assist the court with two questions. Firstly, whether sections 499 and 500 can be read down if required and secondly, whether the fact that there has been a trend of some countries abolishing criminal defamation will have any impact on this court deciding the constitutional validity of a statutory provisions in light of our written and organic constitution.

The court has directed the Union of India to file a counter by 11th July and all the petitioners to file their propositions of law by 14th July which is the next date of hearing.

Kamlesh Vaswani v. Union of India

The Kamlesh Vaswani matter that has asked the Court to direct the Government to block all pornography over the Internet came up before the bench headed by the Chief Justice today. The petitioner stated that they have filed an affidavit highlighting the issue of revenge porn. The Court agreed with the seriousness of the matter and agreed to look at the issue of revenge porn. However, the Chief Justice refused to passed any interim order in the matter and stated that the Court cannot interfere in what adults do inside the four walls of their house and doing so may be violate of their Article 21 rights. The bench has asked the Union to file it’s reply in four weeks.

(Sarvjeet is a Project Manager & Fellow at the Centre)

Cannot Block all Pornographic Material over the Internet: Centre informs the SC

The petition filed by Mr. Kamlesh Vaswani asking for a ban of all pornographic material over the internet came up for hearing today before a three judge bench headed by the Chief Justice RM Lodha.

Mr. Vijay Panjwani, the advocate appearing on behalf of Mr. Vaswani started the arguments by citing examples of how countries like China and Pakistan have banned pornography. The Chief Justice responded saying “What China, Pakistan or any other country does is not our concern. We have to see the problem and remedy it with respect to our own society.”

Mr. Vaswani with his lawyer Mr.  Panjwani in the Court today

Mr. Vaswani with his lawyer Mr. Panjwani in the Court today

Additional Solicitor General, L. Nageswara Rao, appearing for the Centre explained to the court that pornographic videos and images are uploaded outside India. When they receive a complaint, they contact the concerned intermediary (such as Google) and ask them to block the content. He further stated that he has discussed the problem with the Government (DeitY) whose major problem is that even if the content is removed from one place online it is uploaded again in multiple different places. The court seemed to sympathise with this difficulty faced by the Government in enforcement and Justice Nariman even compared the problem to the sprouting of a Hydra’s head.

The Chief Justice stated that “the Centre should not be so helpless and ideally the law should develop faster than the technology”. He however admitted that “technology will always develop faster than law as the human mind is very fertile and innovative’. He also added a cautionary note stating that ‘though technology can do wonders but it can also lead to destruction”. Justice Kurian Joseph stated that these things lead to prurient interests in the younger generation and to rising instances of sexual exploitation.

The ASG informed the court that the problem has been placed before the Cyber Regulation Advisory Committee constituted under Section 88 of the Information Technology Act. The committee was currently examining the matter and one of the ways can be to ask all the big intermediaries to have servers in India. The ASG also categorically informed the court that it cannot pass orders to block all the pornographic websites.

The Court explained to Mr. Vaswani that if his prayer (which includes declaring section 66,67,69,71,72,75,79 and 80 of the Information Technology Act unconstitutional) is accepted in its entirety all the preventive measures currently present to regulate the production, distribution and transmission of the pornography will no longer exist and the spirit of the petition will be lost. The Chief Justice also added that that any measure to regulate porn will have to be within the constitutional framework and the Court cannot be expected to make law. The bench stated that ‘there needs to be a synthesis of law, technology and governance for effective control of pornography over the Internet and the law alone will not be effective if it is not enforceable’.

The bench acknowledged that it was dealing with a complex issue and that there may be multiple methods to achieve the result of regulating pornography over the internet. It directed the Government to place the writ petition before the Cyber Regulation Advisory Committee, so that they can assess the issues that are placed before the Court and come back with its views after four weeks.

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

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)

What’s problematic with Porn Ban?

On Monday, 5th May, a Bench of Justices B.S. Chauhan and J. Chelameswar of the Supreme Court will hear a petition filed by Kamlesh Vaswani, an Indore based lawyer, which seeks among other things, directions to the Government to frame a specific law and a national policy on pornography, to make viewing pornography an offence and to direct intermediaries to proactively monitor and block all pornographic content on the Internet.  .

The Supreme Court’s order on Monday will be crucial, as the petition is problematic on multiple grounds: some of the reliefs claimed by Mr. Vaswani, such as the new law and policy, are outside the court’s domain; while others, like directing intermediaries to  proactively monitor and block online pornography, will have other serious consequences. A major issue is the absence of an objective standard defining pornography. The Supreme Court has in the past held that pornography is an aggravated form of obscenity. However, in the absence of any clear statutory definition, it has held that the task of what is obscene has to be determined by the courts from case to case. Thus, the obscenity standard under the Indian law is complex and requires legal competence to apply: something that intermediaries will simply be incapable of doing.

Besides proactive monitoring and blocking, Mr. Vaswani has also requested the Court to strike down section 79 of the Information Technology Act, 2000 (“IT Act”), commonly known as the ‘safe harbour provision’, which protects intermediaries from liability arising from content posted by third parties. If the Court allows this, it would mean that intermediaries like Dailymotion or Facebook will be liable for pornographic videos uploaded by their users. These intermediaries being business entities, will have greater incentive to protect themselves from liability than to preserve access to protected speech. In the absence of an objective standard and faced with the scenario of assessing very high volumes of material in a very limited time frame, they are likely to err on the side of caution in removing any material which, according to them, might be pornographic. This will lead to over-blocking, potentially affecting legal content, (for instance, websites providing information on HIV-AIDS), which will violate the right to freedom of expression both of users whose legitimate content ends up being taken down, as well as those who will lose access to this constitutionally protected speech.

By issuing such an order, the Supreme Court also risks overstepping its boundaries under the Constitution. Blocking of websites is an executive function under section 69A of the IT Act. Likewise, enacting laws regulating pornography is a purely legislative function. Neither of these, under the Constitution, can be appropriated by the judiciary. The Supreme Court has over the years attempted to strike a fine balance between judicial activism and judicial restraint, with the consensus seeming to be that the Court can issue directions to the Executive only in the complete absence of active law to provide for the effective enforcement of basic human rights – a situation described as a “legislative vacuum”.An example of this is the Court’s 1997 decision in Vishaka v. Union of India, where it issued guidelines to deal with sexual harassment at the workplace in the absence of any law on the point.

On the other hand, where a law already exists, the Court has generally declined to intervene. As recently as this March, a Bench of the Supreme Court (which, incidentally, Justice Chauhan was also a part of) in Pravasi Bhalai Sangathan v. Union of India, taking note of this legal position,refused to frame law banning hate speech on the ground that there were existing provisions under the Indian Penal Code and other laws to deal with it. Likewise, the regulation of pornographic material in India is far from being a legislative vacuum. Sections 67 and 67A of the IT Act respectively penalise transmission of obscene and sexually explicit material in the electronic form, while section 67B similarly criminalises child pornography. In this situation, given that there is a law clearly in force, an intervention by the Court would be an unfortunate breach of its own principles.

In a situation where it is technologically impossible to effectively monitor content online, and in the absence of a clear definition of pornography, any direction issued by the Court to intermediaries to block pornographic content will adversely affect the fundamental right to freedom of speech and expression. Moreover, the Court should follow its own precedents laying down that it is not for the Courts to frame policies or run the administration of the country and it cannot rewrite laws made by the legislature. Online pornography is a matter that Parliament has, in its wisdom, legislated upon to the extent provided for in the IT Act. It is hoped that the Supreme Court will similarly exercise wise judgment and decline to interfere in the matter.

(Manish and Sarvjeet are Fellows at the Centre for Communication Governance at National Law University, Delhi)

Apex Court inquires whether Government of India departments can issue directions for blocking pornographic sites

On 21st April 2014, the petition filed by Kamlesh Vaswani asking for a ban on all pornographic websites, came up for hearing before a Supreme Court bench of Justices BS Chauhan and J Chelameswar. In its previous order the bench had asked the four government respondents (Union of India, Ministry of Communications & Information Technology, Ministry of Information & Broadcasting and the Department of Telecom) to file their replies within 3 weeks.

At the latest hearing, the Union of India filed its counter- affidavit. The court has now directed the Secretary of the Department of Telecommunications (DoT) (Ministry of Communications & Information Technology) to file an affidavit within one week stating whether DoT or any other department is competent to issue directions to the Internet service providers to block pornographic websites.

In response to the Government informing the Supreme Court that it is difficult to block pornographic websites, the bench came down heavily on the Centre and told the ASG that ‘we don’t expect this kind of argument. You are a mighty government. You issue the direction for blocking these sites, or else, we have to issue the direction, though it is not the court’s job to run the administration. When the problem of pornography is brought to your notice, why don’t you take action’. The bench also asked the Government ‘why can’t you control and regulate websites?” to which the ASG responded by saying that ‘we don’t know which of them should be blocked’.

Additional Advocate General PP Malhotra appeared for the Union of India while respondent no. 4, ISPAI was represented by advocates Rahul Narayan and Shivain Vaidalingam. The next hearing of the case is scheduled for 28th April 2014.

See also:

– Cases in which India’s Supreme Court will define contours of free speech online

– One Man’s Pornography is Another Man’s High Art: Internet Service Providers tell Supreme Court in the Porn Petition

– Report on panel discussion on Intermediary Liability & Freedom of Expression

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