# 12 S.C.R. 153 DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS

- **Citation:** [2017] 12 S.C.R. 153
- **Court:** Supreme Court of India
- **Decided:** 2017-12-13
- **Bench:** Dipak Misra, A.M. Khanwilkar, Dr. D.Y. Chandrachud
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/12-s-c-r-153-dr-sabu-mathew-george-v-union-of-india-ors-31519
- **Pages:** 26

## Headnote

Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - s. 22 - Prohibition of C
advertisement relating to pre-conception and pre-natal determination
of sex and pu11ishment for contravention - Writ petition u/Art. 32
seeking iss11a11ce of necessary directions for effective implementation
of the Act, issuance of direction to the Ministries concerned to block
all such websites, namely Google India, Yahoo! India and Micmsoft
Corporation (/) Pvt Ltd. and ban online sex determination
advertisements on their websites; and constitute a separate
monitoring committee - Pronouncement of several orders by this
Court - Submission of the petitioner that in spite of the said orders,
Nodal Agency not been effective to stop the offending material being
displayed on the internet and Google India, Yahoo! India and
Microsoft Corporation (I) Pvt Ltd. responsible for the same - Held:
There has to be a constructive and collective approach to arrive at
a solution together with the Expert Committee and the search engine
owners - Duty of Nodal Agency, the Expert Committee and the search
engine owners to see that the mandate of the Act is scrupulously
followed - Meeting to be held within the stipulated period - Direction
to Google India, Yahoo ! India and Microsoft Corporation (I) Pvt.
Ltd. to co-operate and giFe their point of view for the purpose of a
satisfactory solution - Constitution of India - Art. 32.
Disposing of the writ petition the Court
HELD: 1.1 The Nodal Agency and the Expert Committee
are directed to hold a meeting and have the assistance of the
Counsel for the petitioner and his team so that there can be a
holistic understanding and approach to the problem. The Nodal
Agency and the Expert Committee shall also call upon the
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[2017] 12 S.C.R.
representatives of Google India, Yahoo ! India and Microsoft
Corporation (I) Pvt. Ltd., who are directed to appear before the
Committee and offer their suggestions. There has to be a
constructive and collective approach to arrive at a solution
together with the Expert Committee and the search engine
owners. They are obliged under law to find solutions if something
gets projected in contravention of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994. The effective solution is the warrant of the obtaining
situation. The word "solution" is used keeping in view the earlier
orders and the suggestions given by the competent authority of
the Union of India. The duty of all concerned is to see that the
mandate of the 1994 Act is scrupulously followed. Keeping the
aforesaid in view, a meeting shall be held within six weeks hence.
All the suggestions or possibilities must be stated in writing
before the Committee so that appropriate and properly informed
measures are taken. [Para 28] (177-G-H; 178-A-B]
1.2 This Court is certain that the Union of India and its
Committee would be in a position to take appropriate steps so
that the mandate of the 1994 Act is not violated and the falling
sex ratio in the country, as noted in Centre for Enquiry into Health
E, & Allied Themes (CEHAT), Voluntary Health Association of Punjab
(the 1") ana Viil:mtary Health Association of Punjab (the 2nd), does
not remain a haunting problem. This Court is constrained to say
so as many are guided by inappropriate exposure to the internet.
The respondents have a role to control it and if any concrete
suggestion is given by the petitioner, the same shall be
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incorporated. Google India, Yahoo ! India and Microsoft
Corporation (I) Pvt. Ltd. are directed to cooperate and give their
point of view for the puqJose of a satisfactory solution instead of
taking a contesting stand before the Expert Committee. [Para
29, 30] (178-C-E]
G
Centre for Enquiry into Health & Allied Themes ( CEHAT)
and others v. Union of India and others (2003) 8 SCC
398: [2003] 3 Suppl. SCR 593 ; Centre for Enquiry
into Health and Allied Themes

## Text

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[2017) 12 S.C.R. 153
DR. SABU MATHEW GEORGE
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 341 of 2008)
A
DECEMBER 13, 2017
B
[DIPAK MISRA, CJI, A.M. KHANWILKAR AND
DR. D.Y. CHANDRACHUD, JJ.]
Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 - s. 22 - Prohibition of C
advertisement relating to pre-conception and pre-natal determination
of sex and pu11ishment for contravention - Writ petition u/Art. 32
seeking iss11a11ce of necessary directions for effective implementation
of the Act, issuance of direction to the Ministries concerned to block
all such websites, namely Google India, Yahoo! India and Micmsoft
Corporation (/) Pvt Ltd. and ban online sex determination
advertisements on their websites; and constitute a separate
monitoring committee - Pronouncement of several orders by this
Court - Submission of the petitioner that in spite of the said orders,
Nodal Agency not been effective to stop the offending material being
displayed on the internet and Google India, Yahoo! India and
Microsoft Corporation (I) Pvt Ltd. responsible for the same - Held:
There has to be a constructive and collective approach to arrive at
a solution together with the Expert Committee and the search engine
owners - Duty of Nodal Agency, the Expert Committee and the search
engine owners to see that the mandate of the Act is scrupulously
followed - Meeting to be held within the stipulated period - Direction
to Google India, Yahoo ! India and Microsoft Corporation (I) Pvt.
Ltd. to co-operate and giFe their point of view for the purpose of a
satisfactory solution - Constitution of India - Art. 32.
Disposing of the writ petition the Court
HELD: 1.1 The Nodal Agency and the Expert Committee
are directed to hold a meeting and have the assistance of the
Counsel for the petitioner and his team so that there can be a
holistic understanding and approach to the problem. The Nodal
Agency and the Expert Committee shall also call upon the
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[2017] 12 S.C.R.
representatives of Google India, Yahoo ! India and Microsoft
Corporation (I) Pvt. Ltd., who are directed to appear before the
Committee and offer their suggestions. There has to be a
constructive and collective approach to arrive at a solution
together with the Expert Committee and the search engine
owners. They are obliged under law to find solutions if something
gets projected in contravention of the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994. The effective solution is the warrant of the obtaining
situation. The word "solution" is used keeping in view the earlier
orders and the suggestions given by the competent authority of
the Union of India. The duty of all concerned is to see that the
mandate of the 1994 Act is scrupulously followed. Keeping the
aforesaid in view, a meeting shall be held within six weeks hence.
All the suggestions or possibilities must be stated in writing
before the Committee so that appropriate and properly informed
measures are taken. [Para 28] (177-G-H; 178-A-B]
1.2 This Court is certain that the Union of India and its
Committee would be in a position to take appropriate steps so
that the mandate of the 1994 Act is not violated and the falling
sex ratio in the country, as noted in Centre for Enquiry into Health
E, & Allied Themes (CEHAT), Voluntary Health Association of Punjab
(the 1") ana Viil:mtary Health Association of Punjab (the 2nd), does
not remain a haunting problem. This Court is constrained to say
so as many are guided by inappropriate exposure to the internet.
The respondents have a role to control it and if any concrete
suggestion is given by the petitioner, the same shall be
F
incorporated. Google India, Yahoo ! India and Microsoft
Corporation (I) Pvt. Ltd. are directed to cooperate and give their
point of view for the puqJose of a satisfactory solution instead of
taking a contesting stand before the Expert Committee. [Para
29, 30] (178-C-E]
G
Centre for Enquiry into Health & Allied Themes ( CEHAT)
and others v. Union of India and others (2003) 8 SCC
398: [2003] 3 Suppl. SCR 593 ; Centre for Enquiry
into Health and Allied Themes (CEHAT) v. Union of
India (2001) 5 SCC 577 : (2001] 3 SCR 534 ; CEHAT
v. Union of India (2003) 8 SCC 409 ; CEHAT v.Union
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DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
of India (2003) 8 SCC 410 ; CEHAT v. Union of India
(2003) 8 SCC 412 ; Voluntary Health Association of
Punjab v. Union of India and others (2013) 4 SCC 1 :
[2013] 5 SCR 111 ; Voluntary Health Association of
Punjab v. Union of India and others (2016) 10 SCC
265 : [2016] 8 SCR 192 ; Ajit Savant Majagvai v. State
of Karnataka (1997) 7 SCC 110 : [1997] 3 Suppl. SCR
444 ; Vikas Yadav v. State of Uttar Pradesh & others
(2016) 9 SCC 541 : [2016] 8 SCR 872 - referred to.
Case Law Reference
[2003] 3 Suppl. SCR 593
referred to
Para 5
[2001] 3 SCR 534
referred to
Para6
(2003) 8 sec 409
referred to
Para 6
(2003) 8 sec 410
referred to
Para.6
(2003) 8 sec 412
referred to
Para 6
[2013] 5 SCR 111
referred to
Para 8
[2016] 8 SCR 192
referred to
Para 12
[1997] 3 Suppl. SCR 444
referred to
Para 12
[2016] 8 SCR 872
referred to
Para 15
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)
No. 341 of2008.
Under Article 32 of the Constitution of India.
San jay Parikh, Ms. Anitha Shenoy, Ms. Manjula Gupta, Ms. Srishti
Agnihotri, Ad vs for the Petitioner.
Ms. Pinky Anand, ASG, Ajit Kumar Sinha, K. V. Vishwanathan,
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Dr. A. M. Singhvi, Sr. Advs., Ms. Binu Tamta, R.R. Rajesh, Dr. Nishesh
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Sharma, Ms. Gun want Dara, G. S. Makker, Anupam Lal Das, Anirudh
Singh, Krishanu Barua, Tanuj Bhushan,Aishvary Vikram, S. S. Shroff,
Ravinder Nijhawan, Siddhant Buxy, Arvind Kumar Sharma, Mahesh
Agarwal, Priyadarshi Banerjee, Vishal Gehrana, Vikrant Pachnanda,
Nishant Rao, Arvind Chari, Saransh Jain, Shravan Sahny, Avishkar
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[2017] 12 S.C.R.
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Singhvi, E. C. Agrawa1a, Ms. Ruby Singh Ahuja, Vishal Gehrana,
Ms. Tahira Karanjawala, Arvind Chari, Shravan Sahay, Mrs. Manik
Karanjawala, Avishkar Singhvi (for Mis. Karanjawala & Co.), Advs
for the Respondents.
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The Judgment of the Court was delivered by
DIPAK MISRA, CJI. 1. The instant Writ Petition has been
filed by the petitioner, a public spirited person, for issue of necessary
directions for the effective implementation of provisions of The
Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex
Selection) Act, 1994 (for brevity, "the 1994 Act"). The reliefs sought in
the Writ Petition are to command the respondent Nos. 1 and 2, namely,
Secretary, Ministry of Health and Family Welfare and Secretary, Ministry
of Communication and Infomiation Technology with the help of its
agencies such as Computer Emergency Response Team (CERT) to block
all such websites, including that of the r1<spondent Nos. 3 to 5, namely,
Google India, Yahoo! India and Microsoft Corporation (I) Pvt. Ltd. and
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to stop all forms of promotion of sex selection such as advertisement on
their websites as these violate the provisions of the 1994 Act, and further
to issue of a writ of mandamus to the said respondents ·to post the
directions of this Court on the front page of their search engines so that
there is widespread public awareness and further constitute a separate
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monitoring committee of the CERT and civil society members to check
·against any iucure violations.
2. Before we address the lis that has arisen in the present Writ
Petition and the orders passed on various occasions, it is necessary to
state here that the 1994 Act was enacted by th~ Parliament being
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conscious of the increase of female foeticides and resultant imbalance
of sex ratio in the country. The Statement of Objects and Reasons of
the 1994 Act reads as follows:-
"Statement of Objects and Reasons
It is proposed to prohibit pre-natal diagnostic techniques for
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determination of sex of the foetus leading to female foeticide.
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Such abuse of techniques is discriminatory against the female sex
and affects the dignity and status of women. A legislation is required
to regulate the use of such techniques and to provide deterrent
·punishment to stop such inhuman act.
DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
157
[DIPAK MISRA, CJI.]
The Bill, inter alia, provides for:-
A
(i) prohibition of the misuse of pre-natal diagnostic techniques
for determination of sex of foetus, leading to female foeticide;
(ii) prohibition ofadvertisement of pre-natal diagnostic techniques
for detection or determination of sex;
(iii) permission and regulation of the use of pre-natal diagnostic
techniques for the purpose of detection of specific genetic
abnonnalities or disorders;
(iv) permitting the use of such techniques only under certain
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conditions by the registered institutions; and
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(v) punishment for violation of the provisions of the proposed
legislation."
3. Be it noted, initially the legislation was named as the Pre-natal
Techniques (Regulation and Prevention of Misuse) Act, 1994 and by
Section 3 of the Pre-natal Diagnostic Techniques (Regulation and D
Prevention of Misuse) Amendment Act, 2002 the nomenclature of the
1994 Act has been amended which now stands as The Pre-conception
and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act,
1994 with effect from 1.1.1996. Preamble to the 1994 Act reads as
follows:-
"An Act to provide for the prohibition of sex selection, before or
after conception, and for regulation of pre-natal diagnostic techniques
for the purposes of detecting genetic abnormalities or metabolic disorders
or chromosomal abnormalities or certain congenital malformations or
sex-linked disorders and for the prevention of their misuse for sex
determination leading to female foeticide and for matters connected
therewith or incidental thereto."
4. At this juncture, we may profitably reproduce the "Introduction"
to the 1994 Act:-
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"In the recent past Pre-natal Diagnostic Centres sprang up in the
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urban areas of the country using pre-natal diagnostic techniques
for determination of sex of the foetus. Such centres became very
popular and their growth was tremendous as the female child is
not welcomed with open arms in most of the Indian families. The
result was that such centres became centres of female foeticide.
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[2017] 12 S.C.R.
Such abuse of the technique is against the female sex and affects
the dignity and status of women. Various Organisations working
for the welfare and uplift of the women raised their heads against
such an abuse. It was considered necessary to bring out a
legislation to regulate the use of, and to provide deterrent
punishment to stop the misuse of, such techniques. The matter
was discussed in Parliament and the Pre-natal Diagnostic
Techniques (Regulation and Prevention of Misuse) Bill, 1991 was
introduced in the Lok Sabha. The Lok Sabha after discussions
adopted a motion for reference of the said Bill to a Joint Committee
of both the Houses of Parliament in September, 1991. The Joint
Committee presented its report in December, 1992 and on the
basis of the recommendations of the Committee, the Bill was
reintroduced in the Parliament."
5. The Introduction, the Statement of Objects and Reasons and
the Preamble unmistakably project the scheme which is meant to prohibit
the misuse of pre-conception diagnostic techniques for determination of
sex; to permit and regulate the use of pre-natal diagnostic techniques
for the purpose of detection of specific genetic abnormalities or disorders;
to permit the use of such techniques only under certain conditions by the
registered institutions; and punish for violation of the provisions of the
proposed legislation. Prior to the present incarnation of the 1994 Act, a
Writ Petition was filed before this Court by Centre for Enquiry into Health
and Allied Themes (CEHAT) and others which has been disposed of on
September 10, 2003 in Centre for Enquiry into Health &Allied Themes
(CEHAT) and others v. Union of India and others1• In the said case,
the two-I udge Bench expressed its anguish over discrimination against
girl child and how the sex selection/sex determination adds to the said
adversity. Expressing concern over the said issue, it has been stated:-
"It is also known that a number of persons condemn discrimination
against women in all its forms, and agree to pursue, by appropriate
means, a policy of eliminating discrimination against women, still
however, we are not in a position to change the mental set-up
which favours a male child against a female. Advanced technology
is increasingly used for removal of foetus (may or may not be
seen as commission of murder) but it certainly affects the sex
1(2003) s sec 398
DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
159
[DIPAK MISRA, CJI.]
ratio. The misuse of modern science and technology by preventing
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the birth of a girl child by sex determination before birth and
thereafter abortion is evident from the 2001 Census figures which
reveal greater decline in sex ratio in the 0-6 age group in States
l.ike Haryana, Punjab, Maharashtra and Gujarat, which are
economically better off."
6. The Court referred to its earlier order dated 04.05.2001 in.
Centre for Enquiry into Health and Allied Themes (CEHAT) v. Union
of India2 and taking note of various other directions which find place in
CEHAT v. Union of India3, CEllAT v.Union of India4 and CEHAT
v. Union of India5 , issued the following directions:-
"6 .... (a) For effective implementation of the Act, information
should be published by way of advertisements as well as on
electronic media. This process should be continued till there is
awareness in the public that there should not be any discrimination
between male and female child.
(b) Quarterly reports by the appropriate authority, which are
submitted to the Supervisory Board should be consolidated and
published annually for information of the public at large.
(c) Appropriate authorities shall maintain the records of all the
meetings of the Advisory Committees.
(d) The National Inspection and Monitoring Committee constituted
by the Central Government for conducting periodic inspection shall
continue to function till the Act is effectively implemented. The
reports of this Committee be placed before the Central Supervisory
Board and State Supervisory Boards for any further action.
(e) As provided under Rule 17(3), the public would have access
to the records maintained by different bodies constituted under
the Act.
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(j) The Central Supervisory Board would ensure that the following
States appoint the State Supervisory Boards as per the requirement
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of Section 16-A:
2(2oon s sec s11
'(2003) 8 SC 409
4(2003) s sec 410
'(2003) s sec 412
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1. Delhi, 2. Himachal Pradesh, 3. Tamil Nadu, 4. Tripura, and
5. Uttar Pradesh.
(g) As per the requirement of Section I 7(3)(a), the Central
Supervisory Board would ensure that the followin.~· States appoint
the multi-member appropriate authorities:
I. Jharkhand, 2. Maharashtra, 3. Tripura, 4. Tamil Nadu, and 5.
Uttar Pradesh.
7. It will be open to the parties to approach this Court in case of
any difficulty in implementing the aforesaid directions."
7. The aforesaid directions show the concern of this Court as
regards the strict compliance of the 1994 Act.
8. Prior to proceeding to note the nature of interim directions that
the Court has passed in the present case, it is necessary to refer to two
other decisions. In Voluntary Health Association of Punjab v. Union
of India and others6 (the I"), the two-Judge Bench reflected on the
sharp decline in the female sex ratio and observed thus:-
"6 .... There has been no effective supervision or follow-up action
so as to achieve the object and purpose of the Act. Mushrooming
of various sonography centres, genetic clinics, genetic counselling
centres, genetic laboratories, ultrasonic clinics, imaging centres in
almost all parts of the country calls for more vigil and attention by
the authorities under the Act. But, unfortunately, their functioning
is not being properly monitored or supervised by the authorities
under the Act or to find out whether they are misusing the prenatal diagnostic techniques for determination of sex of foetus
leading to foeticide."
9. The Court, after dwelling upon many an aspect, proceeded to
issue certain directions. In the concurring opinion, direction No. 9.8 was
elaborated and in that context, the opinion stated:-
" 14. Female foeticide has its roots in the social thinking which is
fundamentally based on certain erroneous notions, egocentric
traditions, perverted perception of societal norms and obsession
with ideas which are totally individualistic sans the collective good.
All involved in female foeticide deliberately forget to realise that
•c2013) 4 sec 1
DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
161
[DIPAK MISRA, CJI.]
when the foetus of a girl child is destroyed, a woman of the future
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is crucified. To put it differently, the present generation invites the
sufferings on its own and also sows the seeds of suffering for the
future generation, as in the ultimate eventuate, the sex ratio gets
affected and leads to manifold social problems. I may hasten to
add that no awareness campaign can ever be complete unless
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there is real focus on the prowess of women and the need for
women empowerment."
10. And again:-
" 16. It is not out of place to state here that the restricted and
constricted thinking with regard to a girl child eventually leads to female c
foeticide. A foetus in the womb, because she is likely to be born as a girl
child, is not allowed to see the mother earth. In M.C. Mehta v. State of
T.N. 7, a three-Judge Bench, while dealing with the magnitude of the
problem in engagement of the child labour in various hazardous factories
or mines, etc., speaking through Hansaria, J., commenced the judgment
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"I. I am the child.
All the world waits for my coming.
All the earth watches with interest to see what I shall become.
Civilisation hangs in the balance,
For what I am, the world of tomorrow will be.
I am the child.
You hold in your hand my destiny.
You determine, largely, whether I shall succeed or fail,
Give me, I pray you, these things that make for happiness.
Train me, I beg you, that I may be a blessing to the world."
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The aforesaid lines from Mamie Gene Cole were treated as an
appeal by this Court and the Bench reproduced the famous line
from William Wordsworth "child is the father of the man". I have
reproduced the same to highlight that this Court has laid special
emphasis on the term "child" as a child feels that the entire world
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waits for his/her coming. A female child, as stated earlier, becomes
a woman. Its life-spark cannot be extinguished in the womb, for
such an act would certainly bring disaster to the society. On such
'0 996) 6 sec 756
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an act the collective can neither laugh today nor tomorrow. There
shall be tears and tears all the way because eventually the spirit
of humanity is comatosed."
Elaborating the concept of awareness, it has been noted:-
"33. It is difficult to precisely state how an awareness camp is to
be conducted. It will depend upon what kind and strata of people
are being addressed to. The persons involved in such awareness
campaign are required to equip themselves with constitutional
concepts, culture, philosophy, religion, scriptural commands and
injunctions, the mandate of the Jaw as engrafted under the Act
and above all the development of modern science. It needs no
special emphasis to state that in awareness camps while the
deterrent facets of Jaw are required to be accentuated upon,
simultaneously the desirability oflaw to be followed with spiritual
obeisance, regard being had to the purpose of the Act, has to be
stressed upon. The seemly synchronisation shall bring the required
effect. That apart, documentary films can be shown to highlight
the need; and instil the idea in the mind of the public at large, for
when the mind becomes strong, mountains do melt.
34. The people involved in the awareness campaigns should have
boldness and courage. There should not be any iota of confusion
or perplexity in their thought or action. They should treat it as a
problem and think that a problem has to be understood in a proper
manner to afford a solution. They should bear in mind that they
are required to change the mindset of the people, the grammar of
the society and unacceptable beliefs inherent in the populace."
12. As the matter was not finally disposed of, it came up on various
dates and the Court issued further directions and eventually the matter
stood disposed of by judgment dated 08.11.2016 in Voluntary Health
Association of Punjab v. Union of India and others8 (the 2"d): The
Court reproduced a passage from Ajit Savant Majagvai v. State of
Karnataka9 which is as follows:-
"4. It is unfortunate that in an a&e where people are described as
civilised. crime a&ainst "female" is committed even when the child
'(2016) 1 o sec 265
'(1997) 7 sec 110
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DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
[DIPAK MISRA, CH.]
is in the womb as the "female" foetus is often destroyed to prevent
the birth of a female child. If that child comes into existence, she
starts her life as a daughter, then becomes a wife and in due
co,rse, a mother. She rocks the cradle to rear up her infant,
bestows all her love on the child and as the child grows in age, she
gives to the child all that she has in her own personality. She
shapes the destiny and character of the child. To be cruel to such
a creature is unthinkable."
(emphasis supplied)
13. The Court referred to the observations made in Ajit Savant
Majagvai (supra) though they were made in a different context because
it had condignly stated the enormity of the problem which has also
reflections on female foeticide that has affected the sex ratio. After
recording various directions issued in earlier judgments and scrutinizing
the provisions of the 1994 Act the Court held thus:-
"40. It needs no special emphasis that a female child is entitled to
enjoy equal right that a male child is allowed to have. The
constitutional identity of a female child cannot be mortgaged to
any kind of social or other concept that has developed or is thought
of. It does not allow any room for any kind of compromise. It only
permits affirmative steps that are constitutionally postulated. Be
it clearly stated that when rights are conferred by the Constitution,
it has to be understood that such rights are recognised regard
being had to their naturalness aud universalism. No one, let it be
repeated, no one, endows any right to a female child or, for that
matter, to a woman. The question of any kind of condescension
or patronisation does not arise."
14. Speaking about the constitutional status of women and the
brazed practice of sex identification and female foeticide, the Court
stated:-
"45. Before parting with the case, let it be stated with certitude
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and without allowing any room for any kind of equivocation or
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ambiguity, the perception of any individual or group or organisation
or system treating a woman with inequity, indignity, inequality or
any kind of discrimination is constitutionally impermissible. The
historical perception has to be given a prompt burial. Female
foeticide is conceived by the society that definitely includes the
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parents because of unethical perception of life and nonchalant
attitude towards law. The society that treats man and woman
with equal dignity shows the reflections of a progressive and
civilised society. To think that a woman should think what a man
or a society wants her to think tantamounts to slaughtering her
choice, and definitely a humiliating act. When freedom of free
choice is allowed within constitutional and statutory parameters,
others cannot determine the norms as that would amount to acting
in derogation oflaw. Decrease in the sex ratio is a sign of colossal
calamity and it cannot be allowed to happen. Concrete steps have
to be taken to increase the same so that invited social disasters do
not befall on the society. The present generation is expected to be
responsible to the posterity and not to take such steps to sterilise
the birth rate in violation oflaw. The societal perception has to be
metamorphosed having respect to legal postulates."
15. The purpose ofour referring to the earlier judgments is only to
emphasise upon the dignity, right and freedom of choice of a woman. It
needs no special emphasis to assert that she has the equal constitutiom;l
status and identity. In Vikas Yadav v. State of Uttar Pradesh & others10,
while dealing with honour killing, the Court has ruled:-
"75 .... Freedom, independence, constitutional identity, individual
choice and thought of a woman, be a wife or sister or daughter or
mother, cannot be allowed to be curtailed definitely not by
application of physical force or threat or mental cruelty in the
name of his self-assumed honour. That apart, neither the family
members nor the members of the collective has any right to assault
the boy chosen by the girl. Her individual choice is her self-respect
and creating dent in it is destroying her honour. And to impose socalled brotherly or fatherly honour or class honour by eliminating
her choice is a crime of extreme brutality, more so, when it is
done under a guise. It is a vice, condemnable and deplorable
perception of "honour", comparable to medieval obsessive
assertions."
16. That being the legal position with regard to status of woman
under the Constitution, we are required to analyse the relevant statutory
IU(20t6) 9 sec 541
DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
165
[DIPAK MISRA, CJI.]
provisions of the 1994 Act. Section 22 of the 1994 Act that occurs in
A
Chapter VII which deals with 'Offences and Penalties' reads thus:-
"Section 22. Prohibition of advertisement relating to preconception and pre-natal determination of sex and
punishment for contravention.-
(!) No person, organisation, Genetic Counselling Centre, Genetic
Laboratory or Genetic Clinic, including Clinic, Laboratory or Centre
having ultrasound machine or imaging machine or scanner or any
other technology capable of undertaking determination of sex of
foetus or sex selection shall issue, publish, distribute, communicate
or cause to be issued, published, distributed or communicated any
advertisement, in any form, including internet, regarding facilities
of pre-natal determination of sex or sex selection before conception
available at such Centre, Laboratory, Clinic or at any other place.
(2) No person or organisation including Genetic Counselling Centre,
Genetic Laboratory or Genetic Clinic shall issue, publish, distribute,
communicate or cause to be issued, published, distributed or
communicated any advertisement in any manner regarding prenatal determination or pre-conception selection of sex by any
means whatsoever, scientific or otherwise.
(3) Any person who contravenes the provisions of sub-section ( 1)
or sub-section (2) shall be punishable with imprisonment for a
term which may extend to three years and with fine w)lich may
extend to ten thousand rupees.
Explanation.-For the purposes of this section,
"advertisement" includes any notice, circular, label, wrapper or
any other document including advertisement through internet or
any other media in electronic or print form and also includes any
visible representation made by means of any hoarding,
wall-painting, signal, light, sound, smoke or gas.''
17. Section 23 deals with offences and penalties. Section 26 deals
with offences by companies. It is as follows:-
"Section 26. Offences by companies. -
(1) Where any
offence, punishable under this Act has been committed by a
company, every person who, at the time the offence was committed
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was in charge of, and was responsible to, the company for the
conduct of the business of the company, as well as the company,
shall be deemed to be guilty of the offence and shall be liable to
be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render
any such person liable to any punishment, if he proves that the
offence was committed without his knowledge or that he had
exercised all due diligence to pr· went the commission of such
offence.
(2) Notwithstanding anything contained in sub-section (1), where
any offence punishable under this Act has been committed by a
company and it is proved that the offence has been committed
with the consent or connivance of, or is attributable to.any neglect
on the part of, any director, manager, secretary or other officer of
the company, such director, manager, secretary or other officer
shall also be deemed to be guilty of that offence and shall be liable
to be proceeded against and punished accordingly.
Explanation. -For the purposes of this section, -
(a) "company" means any body corporate and includes a firm or
other association of individuals, and
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(b)"director", in relation to a firm, means a partner in the firm."
Referring to the said provisions, it is submitted by Mr. Sanjay
Parikh, learned counsel for the petitioner that the respondents cannot
engage themselves what is prohibited under the 1994 Act as it is their
obligation to respect the law in letter and spirit and this Court should
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direct the respondent-authorities to take stringent action against search
engines.
18. At this juncture, it is relevant to state that the Court on
16.02.2017, after reflecting on the anguish expressed in Voluntary Health
Association of Punjab (the 2"ct), adverted to various aspects and
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observed thus:-
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"The present writ petition was filed in 2008 by the petitioner, a
doctor in the field of Public Health and Nutrition, expressing his
concern about the modus operandi adopted by the respondent
Nos.3 to 5 to act in detriment to the fundamental conception of
DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
167
[DIPAK MISRA, CJI.]
balancing of sex ratio by entertaining advertisements, either directly
A
or indirectly or as alleged, in engaging themselves in violation of
Section 22 of the Pre-conception and Pre-natal Diagnostic
Techniques (Prohibition of Sex Selection) Act, 1994 (for brevity,
'the 1994 Act'). Times without number, this Court has dwelt
upon how to curb the said malady. In pursuance of our orders
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dated 51h July, 2016 and 251h July, 2016, an affidavit was filed by
the competent authority of the Ministry of Electronics and
Information Technology (MeitY), Government oflndia.
Be it noted, when the matter was taken up on 191h September,
2016, it was submitted by Mr. Ranjit Kumar, learned Solicitor
General that a meeting was held with the three software
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companies, namely, Google India Private Limited, Yahoo ! India
and Microsoft Corporation (I) Pvt. Ltd. and the companies were
asked to respond to certain questions. For the sake of
completeness, it is necessary to reproduce the said questions:-
"(a) Whether respondents feel obligated to comply with the
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provisions of PC-PNDT Act, especially section 22 of
(b)
(c)
(d)
(e)
the Act as directed by this Hon'ble Court vide its order
dated 28.01.2015?
Whether Respondents are ready to publish a "Warning
Message" on top of search result, as and when any user
in India submits any "key word searches" in search
engines, which relates to pre conception and pre natal
determination of sex or sex selection?
Whether Respondents are ready to block "auto-complete"
failure for "key word" searches which relates to preconception and/or pre-natal determination of sex or sex
selection?
Whether the words/phrases relating to pre-conception
and pre natal determination of sex or sex selection to be
provided and regularly updated by the Government for
the 'key word search' or shall it be the onus of the
Respondents providing search engine facilities?
Whether it is feasible for the Respondents to place this
Hon 'ble Court order dated 28.01.2015 on their respective
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Home Page(s), instead of placing them on Terms of
Service (TOS) pages?
(f)
What is the suggested timeline to incorporate "Warning
Message", blocking of the "auto-complete" feature for
key word search & related terms etc. relating to preconception and pre-natal determination of sex or sex
selection?
(g)
Any other information as Respondents would like to
share?"
The responses to those questions were given by the respondent
Nos.3 to 5 and, thereafter, delving into the submissions which
were flSSiduously canvassed by the learned counsel for the
respondents, the following order was passed:-
"Explaining the same, it is submitted by the learned Solicitor
General that all the three Companies are bound to develop a
technique so that, the moment any advertisement or search is
introduced into the system, that will not be projected or seen
by adopting the method of "auto block". To clarify, if any
person tries to avail the corridors of these companies, this devise
shall be adopted so that no one can enter/see the said
advertisement or message or anything that is prohibited under
the Pre-conception and Pre-natal Diagnostic Techniques
(Prohibition of Sex Selection) Act, 1994 (for short, 'the Act'),
specifically under Section 22 of the said Act.
Mr. Sanjay Parikh, learned counsel for the petitioner
would contend that the Union oflndia should have taken further
steps to see that the law of the country is totally obeyed by
these three Companies, inasmuch as the commitment given by
them or the steps taken by the Union oflndia are not adequate.
He has pointed out from the affidavit filed by the petitioner
that there are agencies which are still publishing advertisements
from which it can be deciphered about the genderof the foetus.
Learned counsel would submit that Section 22 of the Act has
to be read along with the other provisions of the Act and it
should be conferred an expansive meaning and should not be
narrowly construed as has been done by the respondents.
DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
[DIPAK MISRA, CJI.]
Mr. Ranjit Kumar, learned Solicitor General at this
juncture would submit that he has been apprised today only
about the "proposed list of words" in respect of which when
commands are given, there will be "auto block" with a warning
and nothing would be reflected in the internet, as it is prohibited
in India. We think it appropriate to reproduce the said
"proposed list of words". It reads as under:-
"Proposed List of Words
Gender selection
Gender selection Kits
Gender selection service
Gender selection clinics
Gender selection technique
Prenatal sex selection
Prenatal sex selection kits
Prenatal sex selection service
Prenatal sex selection clinics
Prenatal sex selection technique
Prenatal sex determination
Prenatal sex determination kits
Prenatal sex determination service
Prenatal sex determination clinics
prenatal sex determination technique
Baby gender selection
Baby gender selection kits
Baby gender selection service
Baby gender selection clinics
Baby gender selection technique
Prenatal diagnostic tests for selection of sex before or
after conception
Prenatal conception test
Prenatal diagnostic
Prenatal foetoscopy for sex selection
Prenatal ultrasonography for sex selection
Sex selection procedure
Sex selection technique
Sex selection test
Sex selection administration
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Sex selection prescription
Sex selection services
Sex selection management
Sex selection process
Sex selection conduct
[2017] 12 S.C.R.
Prenatal image scanning for sex selection
Prenatal diagnostic procedure for sex selection
Sex determination using scanner
Sex determination using machines
Sex determination using equipment
Scientific sex determination and sex selection
Gender test
Early Gender Test"
At this juncture, Mr. C.A. Sundaram, Mr. K.V.
Vishwanathan, learned senior counsel, Mr. Anupam Lal Das,
learned counsel appearing for Google India, Microsoft Corporation
(I) Pvt. Ltd. and Yahoo India, rnspectively, have submitted that
apart from the aforesaid words, if anyone, taking recourse to any
kind of ingenuity, feed certain words and something that is
prohibited under the Act comes into existence, the "principle of
auto block" shall be immediately applied and it shall not be shown.
The learned counsel appearing for the search engines/
intermeJi,;r:es have submitted that they can only do this when it is
brought to their notice. In our considered opinion, they are under
obligation to see that the "doctrine of auto block" is applied within
a reasonable period of time. It is difficult to accept the submission
that once it is brought to their notice, they will do the needful. It
need not be over emphasized that it has to be an in-house
procedure/method to be introduced by the Companies, and we so
direct:••-
19. On the basis of the order passed, an affidavit was filed by the
Union of India which reflected its understanding of Section 22 of the
1994Act. Considering the same, on 16.11.2016, the following order was
passed:-
"The section 22 and the explanation appended to it is very wide
and does no.t confine only to commercial advertisements. The
intention oflaw is to prevent any message/communication which
results in determination/selection of sex by any means what so
DR. SABU MATHEW GEORGE v. UNION OF INDIA & ORS.
[DIPAK MISRA, CJI.]
ever scientific or otherwise. The different ways in which the
conimunication /messages are given by the internet/search engine
which promote or tend to promote sex selection are prohibited
under Section 22. The search engines should devise their own
methods to stop the offending messages/ advertisements/
communication and if the compliance in accordance with law is
not done Ministry of Electronics and Information Technology
(MeitY), shall take action as they have already said in their
affidavits dated 15.10.2015 & 08.08.2016. The Ministry of Health
and family Welfare is concerned about the falling Child Sex Ratio
anJ 1., taking all possible actions to ensure that the provisions of
PC & PNDT Act are strictly implemented."
20. Thereafter the matter was heard at some length and pending
the debate, the Court directed as follows:-
"At this stage, pending that debate, in addition to the earlier directions
passed by this Court, we direct that the Union of India shall
constitute a "Nodal Agency" and give due advertisement in
television, newspapers and radio by stating that it has been created
in pursuance of the order of this Court and anyone who comes
across anything that has the nature of an advertisement or any
impact in identifying a boy or a girl in any method, manner or
mode by any search engine shall be brought to its notice. Once it
is brought to the notice of the Nodal Agency, it shall intimate the
concerned search engine or the corridor provider immediately and
after receipt of the same, the search engines are obliged to delete
it within thirty-six hours and intimate the Nodal Agency. Needless
to say, this is an interim arrangement pending the discussion which
we have noted herein-before. The Nodal Agency shall put the
ultimate action taken by the search engine on its website."
In pursuance of the said order, the Union oflndia has filed an
affidavit of the Joint Secretary, Ministry of Health and Family
Welfare, Government of India. Paragraphs 3 and 4 of the said
affidavit read as follows:-
"3. In compliance of the Court's directive, this Ministry has
set-up a single point contact for the Nodal Agency to receive
the complaints on violation of Section 22 of PC & PNDT Act,
1994.