The Supreme Court’s Free Speech To-Do List

Written by 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 The ban was revoked after much criticism.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 28th March 2016.

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)

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)