Banning online pre-natal sex determination content dangerous: SC [Reported in The Hindu 11th April 2017]

The Supreme Court on Tuesday observed that a general ban on all online content about prenatal sex determination will curtail the fundamental right to know of a genuine information-seeker who is driven by curiousity. “Prenatal sex determination ads is an offence. But a general prohibitory order against all online information pertaining to sex determination is dangerous. We will be curtailing the right to know under Article 19 (1) (a) of the Constitution,” a three-judge Bench led by Justice Dipak Misra observed orally. Attorney General Mukul Rohatgi said there was a distinction between the right to know of an information seeker and the purely commercial objectives of those who post online sex determination ads to make money. "The search of the information seeker is protected by the right to know," Mr. Rohatgi submitted. "Yes. Curiousity is fundamental to the right to know and you cannot curtail it with a direct order," Justice Misra observed orally. "Yes, there should be a restriction on sex determination ads. But can we smother choice of a person to gain information? Right to know is a fundamental right. If we pass a general type order, that is likely to offend Article 19(1) (a)," Justice Misra asked. The court asked for Mr. Rohatgi's assistance and allowed advocate Sanjay Parekh, counsel for petitioner Sabu Mathew George, to effectively address the court on the question as to whether the ban on sex determination advertisements under Section 22 of the Prenatal and Pre-Conception Sex Diagnostic Techniques Act is restricted only to paid advertisements. The court will hear them on April 13. Senior advocates Harish Salve and Abhishek Manu Singhvi, appearing for search engines Yahoo and Google, said intermediaries are not directly responsible for people uploading content online. Mr. Singhvi submitted that banning these ads should not restrain the "innocent searcher." In February, the court ordered Google, Microsoft and Yahoo to immediately set up their own in-house expert bodies to keep tabs and delete prohibited online prenatal sex determination ads. The court said the intent of the order was to make these search engines “responsive to Indian law.”
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