(Madan B. Lokur and Uday Umesh Lalit, JJ.)
In Re: Prajwala L-Etter Dated 18.2.2015 Videos of Sexual Violence and Recommendations
SMW (Crl.) No(s) 3/2015, decided on October 22, 2018
The Order of the court was delivered by
Order
1. We have heard learned amicus curiae, learned counsel for the petitioner and learned Additional Solicitor General.
2. The Union of India has prepared a Standard Operating Procedure for taking action by the security/law enforcement agencies under Section 79(3)(b) of the Information Technology Act. We are not concerned with this for the time being.
3. The Union of India has also prepared a Standard Operating Procedure for cyber police portal – handling complaints involving child pornography – child sexual abuse material, rape/gang rape and obscene contents.
4. It is submitted by learned Additional Solicitor General that the document has undergone some changes. The first version was prepared on 18th June, 2018 and it was subsequently revised on 12th July, 2018. She says that comments are being received from time to time from various State Governments.
5. In any event, since these comments, improvements and suggestions from the State Governments may be a continuous process, we are of the opinion that a cut-off date must be fixed for finalizing the Standard Operating Procedure. Accordingly, we fix 15th November, 2018 as the date for finalizing the Standard Operating Procedure. Of course, this does not mean that improvements cannot be made from time to time and as and when necessary.
6. A copy of the Standard Operating Procedure should be given to the intermediaries who are before us so that they, learned amicus curiae and learned counsel for the petitioner, may make their suggestions to the Ministry of Home Affairs on or before 9th November, 2018 so that the document can be finalized by 15th November, 2018. This deadline should be communicated to the State Governments also. We are constrained to fix this deadline because the Union of India has already had more than two months of experience in working the Standard Operating Procedure and the portal and there must be some finality to the process.
7. It is pointed out by learned counsel for the petitioner that in some cases there has been no response from the concerned nodal officer about the steps that have been taken when a direction has been given to the intermediaries to take down some objectionable content. It is pointed out that as per the information given by learned Additional Solicitor General 43 notices have been issued as on 22nd October, 2018, but the total number of take down orders passed is only 21. There is no clarity with regard to the balance 22. Similarly, the total number of complaints received are 630, but the number of complaints taken up for enquiry is only 355. It is again not clear what has happened to the balance complaints.
8. The Union of India should file an affidavit indicating the number of complaints received, the action taken in a tabulated form so that there is clarity on the action taken.
9. It is submitted by learned Additional Solicitor General that some grievance redressal mechanism is contemplated and it may take some time to put that in place, but efforts are being made in this regard. She also says that the names of all the nodal officers will be put up on the portal so that the public is aware of the person to whom they can get in touch in case objectionable material is placed on internet.
10. In the meanwhile, an officer superior to the nodal officer may be identified so that in case of any disagreement with the views of the nodal officer, some sort of an appeal can be preferred to the higher authority.
11. Fresh status report be filed by the Union of India before the next date of hearing.
12. List the matter on 22nd November, 2018 at 2.00 p.m.
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