Kamlesh Vaswani v. Union of India & Ors. (Pornography ban matter)
A PIL petition has been filed by an Indore based lawyer who seeks to ban pornography in India and to declare Section 66, 67, 69, 71, 72, 75, 79, 80 and 85 of the Information Technology Act, 2000 ultra vires. Petition also prays for a direction to the Union Government to ‘treat watching of porn videos and sharing as non-bailable and cognizable offence.’
|Case||Writ Petition No. 177 of 2013 – Kamlesh Vaswani v. Union of India and others (Public Interest Litigation)|
15 April 2013
The petition filed by Kamlesh Vaswani, an advocate from Indore, came to be heard before a Supreme Court bench headed by the Chief Justice Altamas Kabir. [read Petition]
The bench, which was of the view that the problem was difficult to be curbed, was told by senior advocate M N Krishnamani, appearing for the petitioner, that filing complaint under the cyber law was not the solution as certain provisions in it are ultra vires of the Constitution.
The bench issued notices to ministries of Information and Technology, Information and Broadcasting and Home Affairs and Internet Service Providers Association of India.
Issue notice, returnable two weeks hence (29.04.2013). Let the Union of India and the other respondents be served, both in the usual course and also by way of Dasti service. ”
Matter was then listed on 29 April 2013, 8 May 2013 and then on 9 May 2013 when the matter was ordered for listing after summer vacation. After the summer vacation, matter was listed on 5 July 2013 and was ordered for listing next week.
In its order dated 12 July 2013, granting further time for counter-affidavit, Court observed:
Since this is not an adversarial litigation as such, it is hoped that all the parties, including the Union of India, will treat the matter with all seriousness and take positive steps to try and contain the menace.
21 April 2014
Internet Service Providers Association of India (ISPAI) submitted that they on their own cannot block such sites and they can do so only on the direction of the government. On such a submission, by its order, Court imleaded Department of Telecommunications as a party asking it if it or any other department was competent to ask Internet Service Providers Association of India to ban porn sites. It ordered:
The Secretary, Department of Telecommunications (DoT) may file his personal affidavit within one week on the issue whether the DoT or any other department of the Government of India is competent to issue direction to the respondent No.4 to call off sites showing pornography.
28 August 2014
Matter came before a bench headed by Chief Justice HL Dattu (as Justice B.S. Chauhan retired). Union of India submitted it was struggling to block pornography sites because there were around four crore websites and when they block one, a new one came along.
Observing that easily accessible porn sites were ‘polluting young minds’ and were a ‘major reason behind rising sexual abuse of children’, Justice Kurien Joseph said there would be some method to block such sites.
Justice Rohinton Nariman observed:
It is impractical to block two crore websites as then two crore more sites will surface. They pop up in foreign countries and are hydra-headed. So only servers here will help.
Additional Solicitor General L. Nageswara Rao submitted:
“We wish to have some control over the content of social networking sites but the hurdle is that all of them are headquartered overseas and content uploading is done abroad. There are jurisdictional issues. So we are planning to ask these sites to have a server in India too so that we can scan them.
Court in its order held:
L. Nageswara Rao, Additional Solicitor General, submitted that the Cyber Regulation Advisory Committee had been constituted under Section 88 of the Information Technology Act, 2000 and one of the briefs assigned to that Committee is with regard to availability of Pornography on Internet.
Having regard to the issues which have been raised in the present Writ Petition, it will be appropriate if the Government places the copy of the Writ Petition and Interlocutory Application Nos. 1 of 2013 and 2 of 2013 before the above Committee for its consideration.
17 October 2013
On 17 October, Court allowed the impleadment applications of Hamari Sankriti and Elvis Kottor and asked the Petitioner to amend the cause title. [check office report for details].
On 21 November 2014 and 21 April 2014, Registrar gave Union of India (Ministry of Home Affairs) further opportunities was given to file its counter-affidavit which it failed to file. Matter was listed for hearing before the Court.
8 July 2015
Petitioner submitted that the Union Government had not taken any action and sought orders from the Court. Appearing for the Petitioner, Advocate Vijay Panjwani made certain remarks against the Secretaries of some concerned Ministries over the issue which was objected to by the bench and junior advocates appearing for the Centre. Objecting to this, bench said that such comments were uncalled for. [Business Standard]
Chief Justice HL Dattu further observed:
Such interim orders cannot be passed by this court. Somebody can come to the court and say ‘Look, I am an adult and how can you stop me from watching it within the four walls of my room? It is a violation of Article 21 [right to life and personal liberty] of the Constitution.’ Yes the issue is serious and some steps need to be taken… the Centre has to take a stand… let us see what stand the Centre will take.
However bench then said:
You have not blocked the websites. The petitioner is saying so much.
To this, Additional Solicitor General Pinky Anand said:
We will do whatever is possible.
The bench also sought assistance of the Solicitor General Ranjit Kumar who was then appearing in another court. Bench gave four weeks’ time to is granted to Ministry of Home Affairs to file counter affidavit.
10 August 2015
The petition was listed before the bench comprising of Chief Justice of India HL Dattu and Justices Arun Mishra and Amitava Roy.
Attorney General of India (AG) Mukul Rohatgi, assisted by the Assistant Solicitor General Pinky Anand appeared for the Union of India while the petitioner was represented by advocate Vijay Panjwani. Meenakshi Arora, Sr. Adv. appeared for Internet Service Providers Association of India (ISPAI).
Union of India
AG submitted before the Court that the Government of India had earlier (on 31 July 2015) issued an order to the ISPs to block the websites as per the list given by the Petitioner without verifying them and vide its later order (4 August 2015) asked the ISPs to keep the ban only for those which contain child pornography. AG told court that if someone wished to watch porn within their bedroom how can the state interfere with such an activity. Raising the issue of technical inability, AG submitted that how could someone be stopped from watching porn in their phones.
AG asserted that the Government did not want do moral policing and that we [India] cannot become a totalitarian state by banning all pornographic websites.
AG submitted that the Government of India is committed towards the freedom of Internet and that it has also launched the Digital India project. He further gave examples of the Prime Minister inviting suggestions from the public through www.mygov.in and e-promotion of Swach Bharat Abhiyan.
Referring to the petition, AG contended that the argument that the present law is ineffective and hence unconstitutional is not valid [petition prays for declaring sections 66, 67, 69, 71, 72, 75, 79, 80 and 85 of the Information Technology Act, 2000 as ultra vires].
AG also said that state action may raise issues regarding the privacy right. CJI Dattu who had used a similar line during the last hearing, interrupted and said:
Mr. Attorney, why are you using our lines?
AG also referred to a 2008 Maharashtra incident where certain custom officers were arrested and were charged for obscenity but where later acquitted by the Bombay High Court. He informed the court that appeal against the acquittal is pending before the Supreme Court. Bombay High Court had observed:
Simply viewing an obscene object is not an offence… It becomes an offence only when someone has in possession such objects for the purpose of sale, hire, distribution, public exhibition or putting it into circulation. If the obscene object is kept in a house for private viewing, the accused cannot be charged (for obscenity).
While arguing AG tried to describe different kinds of pornographic contents like softcore, violent and hardcore pornography. CJI Dattu interrupted AG and posed a question which led to a laughter in the courtroom:
Mr. Attorney, how do you know so much about this?
AG further submitted that if certain keywords are used for searching on the internet, using such data [probably he meant about cookies] certain pop-ups may open which may contain adult material.
Taking a tough stand on child pornography, AG told court that Government is committed towards banning of child porn and has been taking measures to disable access to the same. He added that if a URL of child pornography is given, Government orders for its blocking and which may also take place through court orders based on the judgment in Shreya Singhal v. Union of India. He added that ban of pornography may be part of the larger debate, may be in Parliament.
On the issue of protecting children from accessing pornographic material, AG submitted that parental controls, which are easily available, can be used for that purpose.
Appearing for the Petitioner, Vijay Panjwani argued that a criminal activity is a criminal activity whether carried out in private or public. He also referred to section 66F of the IT Act which provides for punishment for publishing or transmitting of material depicting children in sexually explicit act, etc. in electronic form.
Appearing for the Internet Service Providers Association of India (ISPAI), Meenakshi Arora, Sr. Adv. submitted that there was a conflict between the two directions of the Government to the ISPs. She submitted that on 31 July 2015, ISPs were asked to block 857 URLs but vide order dated 4 August 2015 they were let ‘free not to disable’ those URLs which do not contain child pornographic material. She submitted that it was not possible for ISPs to carry out the filter and sought for specific instructions to block URLs containing child pornography.
CJI HL Dattu said that the court had never passed any order for any blocking. To this AG submitted that since the court was not deciding on the case, relevant Government authority and ISPAI could sit and resolve the issue.
AG then suggested to adjourn the matter and post it for final hearing in the month of October. Matter was thereafter adjourned.
Court passed the following order:
Post the matter for hearing in usual course.
SCWLA seeks its impleadment and directions
The on 15 September 2015, filed applications seeking its impleadment in the matter. It further prayed the court to issue directions to the respondents:
- to take measures to promote the dissemination and improvement of filtering services;
- for taking strict measures to prevent distribution and access to pornography including measures regarding file sharing software;
- enhancement and to strengthen of protective measures to reinforce support for victims;
- frame guidelines and adopting various measures towards improvement in the effectiveness of blocking Child pornography on the Internet and to take measures to eliminate child pornography;
- direction to all the schools in India to install jammers in the Buses to prevent access of pornographic sites on the cell phones by the Driver or anyone who is in charge of the children in the Buses; and
- promote public relations and awareness-raising activities concerning risks and proper use of the Internet
26 February 2016
After the retirement of CJI HL Dattu, the matter is now listed before a bench comprising of Justices Dipak Misra and Shiva Kirti Singh. After the hearing, bench asked the Central Government to file before it an appropriate affidavit of the competent authority to suggest the ways and means to curb child pornography. It observed:
The innocent children cannot be made prey to these kind of painful situations, and a nation, by no means, can afford to carry any kind of experiment with its children in the name of liberty and freedom of expression. When we say nation, we mean each member of the collective.
Supreme Court also allowed the Supreme Court Women Lawyers Association to get itself impleaded in the matter. The matter was been adjourned to 28 March 2016.
ASG Pinky Anand sought two weeks’ time from the bench comprising of Justices Dipak Misra and Shiva Kirti Singh with regard to the suggestion given to her in pursuance of Court;s last order. Appearing for SCWLA, senior counsel Mahalakshmi Pavani sought further time to give her suggestions. Vaswani’s counsel – Panjwani brought to the Court’s notice order dated March 15, 2015 issued by the Government of India to ISPs to disable access to certain pornographic website. He sought further orders banning access to such websites. Bench ordered:
Mr. Vijay Panjwani, learned counsel appearing for the petitioner would submit that similar order should be passed by the Central Government so that pornography can be absolutely stopped. Additionally, submits Mr. Panjwani, that further steps are required to be taken to stop the child pornography. All these aspects shall be kept in view by the learned counsel appearing for the Union of India while addressing on the next date of hearing.
Bench ordered to list the matter in the week commencing April 25, 2016.
Upon a mentioning of the matter by petitioner’s counsel Vijay Panjwani, bench headed by Justice Dipak Misra ordered for listing the matter on December 12, 2016.
Bench headed by Justices Dipak Misra and AM Khanwilkar ordered for listing of the matter in the second week of January 2017. Bench further gave the liberty to the counsel for Union of India to file their affidavit as per the previous order.
Disclosure: Author has appeared for one of the Respondents in the matter.
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