Dr. Sabu Mathew George, filed a Public
Interest Litigation, in the Apex Court, to draw the attention of the
State towards, the advertisement, being promulgated electronically, for
Pre-natal or Pre-conception Sex determination, by search engines within
India.[2]
The above mentioned Writ Petition has
been based on the violation of Section 22 of the Pre-conception and
Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994
(PCPNDT Act), prohibits the advertising of the facilities available
with any person, regarding the pre-natal determination of the sex or sex
selection before conception. The Writ Petition highlighted the issue
that three famous and widely used search engines, i.e. GOOGLE, BING,
YAHOO SEARCH, are violating Section 22 of PCPNDT Act. They were involved
in communication of the advertisement, though not advertising
themselves.
On 16th August 2010, Cyber
Laws Formulation and Enforcement Division, Government of India,
Department of Information Technology, filed an affidavit with the
Supreme of Court of India, with regard to differentiate between the
terms “Advertisement” or “Sponsored Links” and “Organic Search Results”.
In differentiating between them, it stated that ‘Organic Search
Results’ emerges out of the automatic indexation of the material
available on the internet, and that lies beyond the control of the
search engines, while the ‘Sponsored Links’ are the advertisements which
are displayed after the person, who wants to advertise, has agreed to
the terms and conditions provided by the respective search engines. It
further stated that, these search engines can only be liable to control
the sponsored links and not the organic search results, as they only
provide a corridor.
The Apex Court while rejecting the above argument, ordered on 4th
December 2014, that an endeavour should be there to apply the provision
of the PCPNDT Act, 1994. As a result, it demanded interference of the
Government of India to control the ‘Organic Search Results’ of these
search engines.Supreme Court, as a protective measure, directed on 28th
January 2015, that GOOGLE, BING, YAHOO, shall not display advertisement
or sponsor them, while violating Section 22 of the PCPNDT Act, 1994,
and shall remove any of the existing advertisement.
Hence, to protect the sex ratio from declining, on 19th
September 2016, Apex Court came out with the “Doctrine of Auto Block”,
to bind, search engine companies, to block the search results, either
‘sponsored’ or ‘organic’, which would generate on the certain keywords
being entered upon, which relates to the ‘pre-natal sex determination’
or ‘pre-conception sex determination’, etc. it has been invoked by Apex
Court, because the companies, have denied their control over ‘organic
search result’. Hence, this Doctrine covers both the ‘advertisement’ as
covered under the PCPNDT Act, and other materials related which aids the
gender selection.[3]
This Doctrine intends to block the
application of the ‘auto-complete’ function, which helps to complete the
keywords while searching for any specific thing, as suitable for the
algorithm of search. ‘Doctrine of Auto Block’ invites the cooperation
between Government of India and Private Companies, whose search engines,
provide the corridor for the advertisements and such other related
materials, which helps citizens of India, to avoid the natural selection
of gender of their offspring.‘Doctrine of Auto Block’, has to be
applied by the Search Engine Companies on their own, and they cannot
depend on the Government, for blocking any specific, advertisement or
content.
Order dated 19th September
2016, marks the failure of Central Supervisory Board created under the
PCPNDT Act and Government of India, as Supreme Court which is a judicial
body had to exercise its powers to apply, Doctrine of Auto Block, to
block the advertisements along with the ‘related material’, which is
available to the public to fulfill their mala fide motives.
The ‘Doctrine of Auto Block’ should be
enshrined in the Section 69A of the Information Technology Act, 2000,
which empowers the Government of India, to block the public access of
any information in the interest of public order and which prevents
incitement to the commission of any cognizable offence as mentioned
under PCPNDT Act. Under this section, Government of India has absolute
power to direct these intermediaries i.e. search engines to block such
contents, whether as ‘sponsored’ or ‘organic search result’
[1] As provided by the Census of India, Ministry of Home Affairs, Government of India
[2]Sabu Mathew George v. Union of India & Ors., Writ Petition (Civil) No.341/2008
[3] Order dated 19.09.2016, Sabu Mathew George v. Union of India & Ors., Writ Petition (Civil) No.341/2008
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