Supreme Court's orders in sex determination case

In the Writ Petition (Civil) No.341 of 2008, Supreme Court of India passed the following orders on the following dates:

1.  18/08/2015
2. 30/4/2015
3. 26/3/2015
4. 19/2/2015
5. 28/1/2015
6. 15/12/2014
7. 04/12/2014
8. 22/9/2014
9. 18/3/2013
10. 14/3/2013
11. 05/4/2010
12. 11/5/2009
13. 24/2/2009
14. 13/1/2009
15. 26/11/2008
16. 13/8/2008 

The notice in this case was issued on  13th August, 2008. Writ Petition (Civil) 349 of 2006 was attached with the original petition on 22nd September 2014. 

The first significant order in the case was passed on 4th December, 2014. The 6 page long order is as under:

"It is submitted by Mr. Sanjay Parikh, learned counsel appearing for the petitioner that despite the legal prohibition, the respondents, namely, Google India, Yahoo India and Mocrosoft Corporation (I) Pvt. Ltd., are still getting things advertised in violation of the legal provisions contained in the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, as amended from time to time. Learned counsel would submit that the Department of Information Technology, Ministry of Communication and Information and the competent authority of Department of Health and Family Welfare are required to work harmoniously to see to it that the provisions of the 1994 Act are not violated, for that gravely affects the sex ratio in the country which has been seriously viewed by the legislature, as well as by this Court on the basis of legislation made by the Parliament. Mr. Shyam Divan, learned senior counsel appearing for the respondent No3, Mr. Anupam Lal Das, learned counsel appearing for the respondent No.4 and Mr. K.V. Vishwanathan, learned senior counsel appearing for the respondent No.5, pray for some time to file their respective replies to the rejoinder affidavit filed by the petitioner. Before we proceed to deal with the prayer for grant of time, we think it is obligatory to take note of one aspect. The Group Coordinator, Cyber Laws Formulation and Enforcement Division, Government of India, Department of Information Technology, had filed a counter affidavit on 16th August, 2010. We are compelled to reproduce a part of the said affidavit: “3(e) While submitting this, it is further to submit that technological limitations pose a difficult task for providers of search engines to filter out/block the information violating the law. It is important to distinguish between two types of results that show up on a search engine. (i) Organic Search results - When a user enters a query in the search box a list of results that are most relevant to the users query are shown. In generating these results the search engine nearly indexes the information that is publicly available and accessible on the Internet in a purely authomated manner. These search results are merely a list of third party independent website that are beyond the control and management of search engines themselves. (ii) Sponsored links - Sponsored links referred to the advertisements placed by advertisers after accepting the terms and conditions of use. These links advertise the goods and services offered by any advertiser and upon clicking on the URL, take the user to the parent website of the advertiser where the user can find more information on the particular product or service that he/she is interested in. (f) The service provider/search engines only provide the carriage, technology for indexing information. The content information is provided by others. Wherever the service provider is providing only the carriage and transmission mechanism and not the contents/information, it is necessary that the distinction needs to be made between a service provider and a content provider. The service provider can only be liable to the extent service provided by him. Wherever the service provider/search engines are providing both carriage as well as contents, it should be their absolute responsibility to filter out/block the violated information and sponsored links. X X X X X (s) The pre-natal sex determination is an offence in India under PC & PNDT Act. However, it may not be an offence in other countries. The information published on the websites is generally aimed at for wider, world wide dissemination and caters to the needs to many countries and may not be for the Indian citizens. Also, most of these websites are hosted outside the country. Blocking of such sites advertising pre-natal sex determinaton may not be feasible due to their hosting outside the country. Moreover, some of the websites provide good content for medical education and therefore blocking of such websites may not be desirable.” As we understand from the affidavit, it reflects a kind of helplessness by the said deponent. That apart, we do not appreciate the manner in which the stand has been expressed in paragraph (s) of the counter affidavit, that has been reproduced hereinabove. Mr. Parikh, learned counsel for the petitioner, in his turn, has submitted that other countries have been able to control such advertisements, which violate the laws of their countries by way of entering into certain kind of agreement, developing technical tools and issuing appropriate directions. In our considered opinion, an effort has to be made to see that nothing contrary to laws of this country are advertised or shown on these websites. However, for the said purpose, we would like to have the assistance from the competent authority from the Department of Information and Technology. We would request Mr. Ranjit Kumar, learned Solicitor General to assist us on the next date, being assisted by a competent officer, as it involves technical issues. Learned counsel for the respondent Nos.3 to 5 have submitted that the websites do not violate the laws of India, but as they provide a corridor, they do not have any control. Be that as it may, a legal solution has to be arrived at. List the matter on 15th December, 2014. As agreed to by the learned counsel appearing for the parties, let the matter be taken up at 2.00 p.m. Liberty to file reply, as prayed for by learned counsel appearing for the respondent Nos.3 to 5, within a week hence. Call on date fixed."

On 15th December, 2014, the Court passed the following order:

"Though a letter was circulated on behalf of the Respondent No.3 seeking three weeks time to seek instructions, yet we have thought it apt to take up the matter regard being had to the directions issued in the previous order. The respondent No.3 may file the additional affidavit within a period of three weeks and that shall be adverted to on the next date of hearing. At this juncture, on a query being made, whether the Central Government has any device to see that the Respondent Nos.3 to 5 or such entities can be controlled not to show anything on their website which would violate the Indian Law, Mr. Ranjit Kumar, learned Solicitor General, being instructed by Dr. Gulshan Rai, Director General, Ministry of Information and Technology, submitted that there are certain areas which can be controlled and there are certain areas which may not be possible to control by the Central Government. We would like the competent authority to file a comprehensive affidavit which can be of assistance to this Court. Needless to say, the affidavit that shall be filed by the competent authority should be in consonance with the provisions contained in the Information Technology Act, 2000. The affidavit shall be filed within three weeks from today. Let the matter be listed on 28.01.2015."

On 28th January, 2015, the Court passed the following 3 page long order:

:"Heard Mr. Sanjay Parikh, learned counsel for thepetitioenr, Mr. Ranjit Kumar, learned Solicitor General of India, Mr. Shyam Divan, learned senior counsel for Respondent No.3, Mr. Anupam Das Gupta, learned counsel for Respondent No.4 and Mr. Vishwanathan, learned senior counsel for Respondent No.5. All the affidavits are taken on record. It is submitted by Mr. Ranjit Kumar, learned Solicitor General of India, relying on the additional affidavit filed by the Union of India, that it can stop the presentation of any kind of thing that relates to sex selection and eventual abortion, if the URL and the I.P. addresses are given along with other information by the respondents, regard being had to the key words, namely, “pre-natal diagnostic tests for selection of sex before or after conception, pre-natal conception test, pre-natal diagnostic, pre-natal foetoscopy for sex selection, pre-natal ultrasonography for sex selection, sex selection procedure, sex selection technique, sex selection test, sex selection administration, sex selection prescription, sex selection services, sex selection management, sex selection process, sex selection conduct, pre-natal image scanning for sex selection, pre-natal diagnostic procedure for sex selection, sex determination using scanner, sex determination using machines, sex determination using equipment, scientific sex determination and sex selection” It is his submission that such blocking/filtering on key-words advertisements links can be effectively or regularly done by the respondents as they have access to their respective mathematical algorithms all the time. In essence, either the respondents can block themselves or on certain details being provided the Union of India can block it. Learned counsel for the respondents have referred to Section 22 of the PCPNDT Act 1994 and Section 69A of the Information Technology Act, 2000, apart from other provisions. Mr. Sanjay Parikh, learned counsel appearing for the petitioners has submitted that throughout the world, the search 3 engines have been directed to block certain service/giving of information which are not permissible to be shown in that country despite the issues of jurisdiction and technical problems being raised. He undertakes to file a convenience volume of judgments by the next date. Having heard the learned counsel for the petitioner, as an interim measure, it is directed, the respondents, namely, Google, yahoo and Micro Soft shall not advertise or sponsor any advertisement which would violate Section 22 of the PCPNDT Act, 1994. If any advertise is there on any search engine, the same shall be withdrawn forthwith by the respondents. At this juncture, Mr. Parikh, learned counsel appearing for the petitioner submitted that the order passed today shall be put on the policy page as also on the page containing 'terms and conditions of service' by respondent Nos. 4 to 6. The prayer is accepted and accordingly so directed. The matters relating to total blocking of the items that have been suggested by the Union of India and providing the URL and IP addresses by Google, Yahoo and Micro Soft shall be taken up on 11.02.2015 when the matter shall be taken up for further hearing."

On 26th March, 2015, the Court passed the following 2 page long order:

"It is submitted by Mr. Sanjay Parekh, learned counsel appearing for the petitioner that, the order passed on 28.01.2015 is not followed by the respondent nos.3, 4 and 5, namely, Yahoo, Google and Micro Soft inasmuch such advertisements which were prohibited by virtue of that order are still being depicted. Mr. Parekh has filed a compilation indicating that till 19.02.2015, advertisements were shown by the search engines. Let the same be served on the learned counsel for the said respondents within three days from today. Response thereto be filed within a week therefrom. Be it noted, learned counsel appearing for the said respondents seriously disputed the allegations made by Mr. Sanjay Parekh. Be that as it may, the said aspect shall be adverted to after the copy of the compilation is served on the learned counsel for the respondents and response thereto is filed after a week therefrom as fixed hereinabove. Let the matter be listed in the last week of April, 2015."

On 28th August,2015, the Court passed the following 3 page long order:

"It is submitted by Mr. Sanjay Parikh, learned counsel appearing for the petitioner that he has filed an affidavit on 14th August, 2015, ascertaining that despite the interim order passed by this Court that there should not be any advertisement by the respondent Nos.3 to 5, the advertisement is still carried on. Mr. Shyam Divan and Mr. K.V. Vishwanathan, learned senior counsel appearing for the respondents, pray for two weeks' time to file response to the said affidavit. Prayer stands allowed. At this stage, Mr. Sanjay Parikh has drawn our attention to a part of the order dated 12th May, 2015, which reads as follows: “Mr. Sanjay Parikh, learned counsel appearing for the petitioners submitted that vide order dated 28th January, 2015, this Court had directed to reflect the said order on the “policy page” as also on the page containing “terms and conditions of service”, but the “policy page” does not sub-serve the purpose and, therefore, it should be put on the “Home page”. Learned counsel for the respondents pray for some time to file response to the same. Be it noted, Mr. Sanjay Parikh, learned counsel, has submitted with immense concern that when it is reflected in the “Home page”, there is a real warning, but when it is mentioned in the “policy page”, it does not really come within the public domain as is expected.” Mr. Ranjit Kumar, learned Solicitor General appearing for the Union of India, shall file an affidavit of the competent authority in that regard, in addition to the substantive affidavit that is required to be filed by the Union of India with regard to the affidavit filed on 14th August, 2015, by the petitioner. The contesting respondent Nos.2 to 5 shall also file their respective affidavits in that regard. Let the matter be listed after four weeks. Liberty to mention."

These orders are an outcome of PIL filed by Sabu Mathew George through well known public interest lawyer, Sanjay Parikh. It is unpeeling many dubious layers of illegal sex determination tests underway in the country with the complicity of almost all the concerned public and private institutions. It appears that Court alone can set matters right if progressive state governments can intervene creatively.