The Government of India passed the buck for the banning of 857 websites last week to the the Department of Telecom, and said, again and again, that it doesn’t want to do moral policing. Mukul Rohatgi, the Attorney General, said in court that a “long list” given by the petitioner, Kamlesh Vasvani, had been given, and “the department went and blocked without verifying.” The AG also said that they blocked sites dealing in child porn, and pointed out that there are various shades of porn, including “hardcore and softcore”.
“Geographic frontiers are no longer frontiers. If it (porn) can be distributed, it can be stopped. How can you stop it on the phone? The other thing is that if someone wants to watch in the privacy of their bedroom, how can we stop that? These are now issues of 19(1)”.
Article 19(1) of the constitution of India provides freedom of speech, while 19(2) provides restrictions on free speech. Readers should note that in a different case last week, the Attorney General also argued that there is no fundamental right to privacy, under 19(1).
“Can we be moral policing?,” Rohatgi continued, saying “We are talking about digital India as an inclusive program. The Prime Ministers website has a mygov.in platform, and he has asked people to give inputs on his independence day speech, and Swachh Bharat. Crores of people can congregate there,” saying that it’s not possible for crores of people to congregate offline.” Rohatgi also mentioned that a case was bought against officers of the Customs department who were watching porn, in the Bombay High Court, and the High Court quashed it, saying that it was being watched in the confines of their room.”
“Our view,” the AG continued, “is that Child Pornography has to be blocked.” He did, however, mention that If one goes on the net and searches for something, the sites pick up what they’re searching, for example, for the time table for cabarets, then there will be advertising popups that might show porn, because of the history of searches. “There are many issues and we don’t want to do moral policing. There is also difficulty: the websites can change their names and change their website, and it becomes difficult. We will obey court orders, but we don’t want to become a moral police.”
In response, Vijay Panjwani, representing Kamlesh Vasvani, said that the trasmission of pornographic content by ISPs is a criminal activity, which can lead to imprisonment of up to eight years. He pointed out that techies from the Banaras Hindu University have filed details of technology which can sense and block porn.
Rohatgi pointed out that every computer can have a child lock, and a parental lock, and similar software is being developed for mobile phones too. “The best filter is not to stop it at the gateway of the country, but at the home. If two adults feel it is entertainment…we cannot be present in everyone’s house. Some kind of self regulation has to be done. That is how it works across most of developed countries. Otherwise, it becomes a totalitarian state. What happens to 19(1)? Tomorrow they will say stop this, stop that.”
Meenakshi Arora, representing the ISP Association of India, said that there is a conflict between the two directions that the ISPs have received from the government. The order that indicated that the ISPs are “free not to disable” those sites that do not have child pornography, has some issues. “The 857,” she said, “were not URLs but websites. A URL has a specific identity.” Secondly, she added, that the ISPs will “will block whatever you want us to block, but we cannot block on our own, because it is a violation of our license. In the interim, those websites are blocked. Let the government give a clear instruction of URLs.”
To this, Rohatgi, the AG, said that there’s an easy resolution for this, and he will set up a meeting between the ISPs and the DoT. Arora responded saying that the ISPs have written to the DoT, but haven’t received a response yet.
Vijay Panjwani, representing Kamlesh Vasvani, pointed out that there are films based on acts, a list of 16 types of porn, that are banned in the UK, for example, one of which is about videos depicting sex with horses.
The court adjourned, and a date hasn’t been finalized yet, although the AG asked for a date in October.
Updates: typo fixed.
