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In a recent order in a public interest litigation filed by Dr Sabu Mathew George, seeking that internet search engines Google, Yahoo and Microsoft comply with the Pre-Conception and Pre-Natal Diagnostic Techniques Act, 1994(PCPNDT Act) which bans pre-natal sex determination, the Supreme Court directed that these search engine companiesimprove their agreements to fully comply with the letter and spirit of the Act.

Pre-natal sex determination has been banned in India in order to put an end to the practice of female foeticide,carried out by many couples with a patriarchal mindset.

The apex court has sought that “auto-block” should operate instantly on any key words that indicate information relating to pre-natal sex determination advertisements or any material banned under the PCPNDT Act.

The government had compiled a list of words that should be auto-blocked, with the proviso that the list is capable of being updated.

In response to a query by the Court as to whether the updating should be done by the companies or the government, the responses were somewhat varied.  However, it was generally agreed that while the updated words should be provided by the government, the search engine companies would reserve the right to review the words, and would update the list also on the basis of reported violations.

On the issue that a combination of such words might be used ingeniously by a person trying to circumvent the auto block, the companies said that they would block these combinations when they are brought to their notice. However, the court felt that this should be an automatic feature, already incorporated in the auto-block system.

The companies had agreed to publish a “warning message” at the place where key words are fed in,but all the companies said that they could not put a message on their respective home pages as it would interfere with the design and layout of the page; that the home page already prevents links to such material; and that the message has been placed on the terms of service page.

The petitioner’s counsel objected to the narrow interpretation of section 22 of the PCPNDT Act by the companies. Section 22 bans advertisements relating to pre-natal gender selection. The search engine companies said that the section relates only to commercial advertisements for pre-natal sex determination and not to other forms of search content such as images, search results, videos and blogs, and “searchfunction that arealgorithmically/organicallypopulated”.

The order of the Court says that the counsel for the petitioner “… has pointed out from the affidavitfiled by the petitioner that there are agencies which arestill publishing advertisements from which it can bedeciphered about the gender of the foetus. Learned counselwould submit that Section 22 of the Act has to be read alongwith the other provisions of the Act and it should beconferred an expansive meaning and should not be narrowlyconstrued as has been done by the respondents.”

According to reports, earlier, the search engine companies had raised the issue that a total block on keywords might affect research results. However, they were ordered to comply with the PCPNDT Act.

In order to smoothen out the remaining issues the matter is listed for hearing on 16th November.

However, some effective method will have to be devised whereby genuine research into the issue of pre-natal sex determination is not blocked. To use an example, if the search words “prenatal diagnostic”, which are in the list of banned keywords (see box)are auto-blocked, perhaps the orders of the Supreme Court, or even the text of the law itself may become inaccessible to the public.

 

—By Nayantara Roy

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