The Supreme Court’s Free Speech To-Do List

Written by members of the Civil Liberties team at CCG

The Supreme Court of India is often tasked with adjudicating disputes that shape the course of free speech in India. Here’s a roundup up of some key cases currently before the Supreme Court.

Kamlesh Vaswani vs. Union of India

A PIL petition was filed in 2013 seeking a ban on pornography in India. The petition also prayed for a direction to the Union Government to “treat watching of porn videos and sharing as non-bailable and cognizable offence.”

During the course of the proceedings, the Department of Telecommunications ordered ISPs to block over 800 websites allegedly hosting pornographic content. This was despite the freedom of expression and privacy related concerns raised before the Supreme Court. The Government argued that the list of websites had been submitted to the DoT by the petitioners, who blocked the websites without any verification. The ban was revoked after much criticism.

The case, currently pending before the Supreme Court, also presented implications for the intermediary liability regime in India. Internet Service Providers may claim safe harbor from liability for content they host, as long as they satisfy certain due diligence requirements under Sec. 79 of the IT Act, read with the Information Technology (Intermediaries Guidelines) Rules, 2011. After the Supreme Court read down these provisions in Shreya Singhal v. Union of India, the primary obligation is to comply with Court orders seeking takedown of content. The petition before the Supreme Court seeks to impose an additional obligation on ISPs to identify and block all pornographic content, or risk being held liable. Our work on this case can be found here.

Sabu Mathew George vs. Union of India

This is a 2008 case, where a writ petition was filed to ban ‘advertisements’ relating to pre-natal sex determination from search engines in India. Several orders have been passed, and the state has now created a nodal agency that would provide search engines with details of websites to block. The ‘doctrine of auto-block’ is an important consideration in this case -in one of the orders the Court listed roughly 40 search terms and stated that respondents should ensure that any attempt at looking up these terms would be ‘auto-blocked’, which raises concerns about intermediary liability and free speech.

Currently, a note has been filed by the petitioners advocate, which states that search engines have the capacity to takedown such content, and even upon intimation, only end up taking down certain links and not others. Our work on this case can be found on the following links – 1, 2, 3.

Prajwala vs. Union of India

This is a 2015 case, where an NGO (named Prajwala) sent the Supreme Court a letter raising concerns about videos of sexual violence being distributed on the internet. The letter sought to bring attention to the existence of such videos, as well as their rampant circulation on online platforms.

Based on the contents of the letter, a suo moto petition was registered. Google, Facebook, WhatsApp, Yahoo and Microsoft were also impleaded as parties. A committee was constituted to “assist and advise this Court on the feasibility of ensuring that videos depicting rape, gang rape and child pornography are not available for circulation” . The relevant order, which discusses the committee’s recommendations can be found here. One of the stated objectives of the committee was to examine technological solutions to the problem – for instance, auto-blocking. This raises issues related to intermediary liability and free speech.

Find ways to curb Child Pornography: SC

Today in Court Room no. 4 of the Supreme Court the porn ban petition filed by Kamlesh Vaswani was taken up by the bench of Justices Dipak Mishra and Shiva Kirti Singh.

Mr. Vijay Panjwani, advocate for Mr. Vaswani stated that it has been two years since the petition was filed and the Court issued notices, yet some respondents have not filed their replies.

Ms. Pinky Anand, the Additional Solicitor General of India was representing the Union of India. Ms. Anand submitted that the Court should confine itself to the issues of child pornography as anything beyond that will involve issues of privacy and other rights (in May 2014 the Government had submitted to the Court that a blanket ban on pornography will violate Articles 19 and 21 of the Constitution).

However, Justice Mishra in response to that stated that ‘what is the privacy argument? I do not understand what is the privacy issue?’ no one wants to be seen doing this and that if there is any issue the Court can interpret it and deal with it during the arguments.

Subsequently, Justice Shiva Kirti Singh stated that ‘the State should not interfere in every matter’ but only in cases where a crime has been committed.

Agreeing with Justice Singh, Ms. Anand stated that the Centre is concerned about child pornography. She stated that various agencies including Interpol, CBI, the Departments of Electronics and Information Technology (DeitY) and Telecom (DoT) of the Ministry of Communications and Information Technology and various Internet Service Providers (ISPs) are working together to come up with mechanisms to deal with child pornography. She explained one of ways to address this. She stated that the CBI will procure a list of child pornography sites from Interpol (more details available here) and pass it to DeitY (more details available here). DeitY will provide a list to DoT which will direct the ISPs to block all these sites. She further stated that most of these materials are generated outside India and it is not possible to have a blanket ban.

She further stated that most of these materials are generated outside India and it is not possible to have a blanket ban.

Mr. Panjwani interjected stating that the ISPs keep raising the argument of free speech but an illegal act cannot be protected under the garb of free speech. He raised the recent JNU example and stated that the Finance Minister stated yesterday in the Parliament that such speech cannot be protected under Right to Freedom of Expression and that his argument is similar to that and pornography cannot be protected under the Right to Freedom of Expression.

Justice Singh asked Mr. Panjwani, how he will define pornography? He subsequently added that it is difficult to define pornography and that someone can find even a picture of Monalisa pornographic.

Mr. Panjwani stated that there is a difference between obscenity and pornography and that there are videos of humans and animals engaging in sexual activities and that it is a cruelty to animals.

Ms. Anand reiterated her point of focusing on child pornography as it may be difficult to find mechanisms for other issues. However, Justice Mishra stated that petitioner’s case is not just about child pornography but all kinds of pornography. He further added that what is not permissible under the India law should not be allowed and the mechanisms to prevent those things can be evolved. He subsequently asked the Government if they were making a distinction between child pornography and adult pornography and to find out from the Ministry if porn can be blocked.

Ms. Anand reiterated the Union’s stand that it is not possible to block porn (the Government has made similar arguments in the past; see here and here). However, Justice Mishra responded that they can block it and that there are means to do it. He added that other countries have not accepted defeat on this issue on the basis of technology and there are ways to deal with it. He added that in a different affidavit filed by the Solicitor General for an authority, it has been stated that this can be blocked. He stated that misogyny, sadism and voyeurism should be prevented online.

Ms. Anand stated that we need to enquire whether the State should in the first place enter this discussion and a personal decision of what a person should watch or not. Whether the State should decide what the moral code of the society is? She said all these are subjective issues and what is pornography and what is not is also subjective.

Justice Mishra said that the there I no subjectivity in it. He stated that obscenity is recognised and punishable by the law. Pornography may or may not be obscene in some contexts, but in videos it will be obscene. Obscenity is linked to misogynism, perversion, sadism, voyeurism. These are the acts depicted in pornography which have a direct nexus with obscenity as crime punishable under Section 292 of the Indian Penal Code. He said there is no subjectivity where it affects the moral code.

Justice Singh added that we should examine what is allowed in public spaces and private spaces. Ms. Anand added to this stating the State cannot interfere with what people consume in the privacy of their homes.

Senior advocate Mahalakshmi Pavani Rao, who was representing the Supreme Court Women Lawyers Association stated that porn is spreading like a moral cancer. She stated that in school bus driver and conductors have porn on their phones and force children to watch it and molest and sodomise them.

Ms. Anand agreed that child pornography is a serious issues and needs to be looked into. However, it may be difficult to look into other issues.

Justice Mishra stated that everyone can start by looking at issues of child pornography first. He said that freedom of speech and expression under Article 19(1)(a) is not absolute and liberty is not absolute. He said that innocent children cannot be subjected to such painful situations. He added that a nation cannot afford to experiment with its children in the name of liberty and these moral assaults may bring physical disasters with them.

Justice Singh commented that there is a fine line between what is pornography and what is permissible and the Government should try coming up with something to address this. The Bench also asked the ASG to explore whether a ban on consuming pornography in public places can be explored?

The Bench directed the petitioners to provide suggestions to the Government to come up with schemes to tackle child pornography and also allowed the Union to take suggestions from the National Commission of Women. The matter has now been listed for 28^th March 2016.

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)