In a public interest litigation (PIL), the Supreme Court of India took a stern stand against the central government which said that it could not stop  online advertisements for pre-natal sex determination which showed up on search results in India.

The PIL was filed by one Sabu Mathew George in 2008 and the litigant sought a ban on online content on pre-natal sex determination which are in violation of the provisions of the pre-conception and pre-natal diagnostic techniques (prohibition of sex selection) Act, 1994. Search giants Google, Yahoo and Microsoft have been arraigned as respondents in the suit along with the central government.

According to the prohibition of sex selection Act, any person who puts an advertisement for pre-natal and pre-conception sex determination facilities in the form of a notice, circular, label, wrapper or any document through media in electronic or print form can be imprisoned for up to three years and fined Rs 10,000. (PDF here)

In a 2010 counter affidavit the central government had said that pre-natal sex determination is an offence in India but is not so in other countries and the information in these websites is hosted offshore and  is aimed at a wider audience. Therefore blocking such websites may not be feasible and desirable. It also mentioned that some of the websites provide good content for medical education and therefore blocking of such websites may not be desirable.

A division bench headed by justices U.U. Lalit and Dipak Mishra took objection to the response in the affidavit and said that it reflects a kind of helplessness by the government. The bench also urged that an effort has to be made to see that nothing contrary to the laws of India are advertised or shown on websites. The order added that the advocate for the petitioner has submitted documents which say that other countries have been able to control such advertisements, which violate the laws of their countries by entering into agreements, developing appropriate tools and issuing directions.

The court has sought assistance from a competent authority from the department of information and technology (DeitY) and solicitor general Ranjit Kumar over the technical issues on the next date of the hearing. The matter is listed next for December 15 at 2 p.m.

Google India, Yahoo India and Microsoft India contended in court that they merely provide a “corridor ” for content. The court, however, said that a legal solution must be arrived at.

Our take: This is a tight rope that international companies have to walk and make sure that they are not in violation of the law of the land. If it is a question of blocking content originating from outside, Google could stop the ads on pre-natal sex determination based on the IP address of the user. However, it can get difficult when people use proxy servers and determining their location would become difficult.

Read the full court order

Sabu Mathew George v. Union of India & Ors.