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On 10 August 2015, PIL petition filed by Indore-based lawyer Kamlesh Vaswani was listed before the Supreme Court bench 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.
Next Date as per computer listing: 1 September 2015
Disclosure: Author is appearing for Respondent No. 4 – ISPAI in the above matter.