Centre asked to file report sanctioning websites' prosecution

The Delhi High Court today asked the Centre to file its report according sanction to prosecute 21 websites, including Facebook, Google, Yahoo and Microsoft, for allegedly promoting enmity between classes and causing prejudice to national integration.

"You file the report tomorrow," Justice Suresh Kait asked the counsel for the Centre and posted the petitions of Google India and Facebook India for further hearing on February 16.

Out of 21 websites summoned by a trial court for allegedly promoting enmity between classes and causing prejudice to national integration, Google India and Facebook India had moved the high court challenging the summonses to them on various grounds including the one that they had no control on the contents posted by users on their websites.

The Centre had earlier filed the report before a metropolitan magistrate that there was "sufficient material" to proceed against the websites for the offences alleged by complainant Vinay Rai.

Lawyer Hariharan, appearing for the complainant, alleged there was sufficient material before the trial court to issue "process" (issuances of summonses) against the websites which deliberately facilitated the commission of the offences.

"Scope of inquiry at the time of issuing the process is very limited and at initial stages, the magistrate is only required to see as to whether a prima facie case against the accused was made out," the lawyer said.

Citing various apex court judgements and provisions of the Code of Criminal Procedure and the Evidence Act, he justified the issuance of summonses against the websites by the lower court, saying the companies had powers and technical expertise to screen objectionable materials on their websites.

Senior advocates N K Kaul and Siddharth Luthra, appearing for Google India and Facebook India respectively, objected to the court's direction asking the Centre to advance arguments in the case.

"We have not seen a case where Centre has come rushing to the court to raise submissions in a private complaint case like this. We object to this," Kaul said, while Facebook India counsel Luthra too raised similar contentions.

The counsel for the Centre and the Delhi Police objected to the pleas of the websites and said the issue concerned millions in a "great country" like ours.

"The Union of India has every right to represent itself in the case as it affects many persons in the country," he said, adding the Delhi Police, moreover, was asked by the lower court to conduct an inquiry and the Centre had accorded the sanction to prosecute the websites.

"The right to be heard cannot be denied to the Centre and the Delhi Police," he said.

Justice Kait then asked the Centre and the Delhi Police to advance their arguments on February 16 before it.

The complainant's counsel Hariharan, earlier concluded his arguments saying the websites like Google Plus can monitor the contents posted by the users.

"In case of Google Plus, whenever a user logs in to the website, there is an option allowing the posts to be seen by common public or for private viewing and this is the time, when a proper check and balance can be done to screen the objectionable materials," Hariharan said.

He added that the websites did not screen the offending contents and allowed them to be there on their sites.

Justifying the summoning of the websites, the lawyer for the complainant said whenever, an advertisement is given to them, the commercials are modified and it establishes that even the contents can also be monitored and screened.

He also said the websites are in possession of the evidence as the servers, which cannot be brought before the court, are with them.

"The metropolitan magistrate had taken due care while summoning the websites as he also got an inquiry conducted by the police," he said, adding that for all practical purposes, offshore companies like Google Inc had "pervasive" control on their Indian subsidiaries such as Google India.

The websites were earlier summoned by a lower court to face prosecution in the case. The inquiry report, filed by police, also supported the plea of the complainant to try the websites.

The Department of Information Technology, in its report, granted sanction to proceed against the 21 companies for allegedly promoting enmity between classes and causing prejudice to national integration.

"The sanctioning authority has personally gone through the entire records and materials produced before him and after considering and examining the same, he is satisfied that there is sufficient material to proceed against the accused persons under section 153-A, 153-B and 295-A of the IPC," the Centre had said in its report placed before Metropolitan Magistrate Sudesh Kumar.

The magistrate had on December 23 issued summons to 21 websites for allegedly committing offences of criminal conspiracy, sale of obscene books and sale of obscene objects to young persons.