Aadhaar to verify age, stringent law for demeaning disability, "anti-national" content: Supreme Court on online content regulation

The Supreme Court on Thursday suggested that age verification using Aadhaar could be implemented for accessing "obscene" online content.

The Bench of Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi emphasised the need for displaying a warning stating that such content may not be suitable for general audiences.

"Obscenity can be in book, painting etc. If there is an auction...there can be restrictions also. The moment you switch on phone and something comes which you don't want or is forced on you, then what?" Justice Bagchi remarked.

CJI Kant added that though warnings are usually there, age verification can be done as an additional measure.

"See the issue is warning is given and the show starts. But by the time you decide not to watch, it starts. The warning can be for a few seconds...then perhaps ask for your Aadhaar card etc. So that your age can be verified and then the program starts. Of course these are illustrative suggestions...a combination of different experts...someone from judiciary and media can be there also...Let something come up on pilot basis and if it clogs free speech and expression, it can be looked at then. We need to build a responsible society and once that happens, most of the problems will be solved," Justice Kant said.

The Court was hearing a batch of petitions related to comedians and podcasters who have landed in trouble over their online conduct. Today, the Court reiterated the need to regulate online content, adding that an autonomous body was required to decide what can and cannot be allowed.

CJI Kant remarked that "self-styled" bodies will not be enough to address the situation and that some regulatory body, free from outside influence, was needed as a regulatory measure.

"Only an autonomous body is needed to decide for the interregnum period to see if something can be allowed or not...if permissible then fine. If everything is allowed then what will happen?" the Court asked.

The Court clarified that fundamental rights would have to be balanced and that it would not approve "something which can gag somebody".

"We will be the last one to suggest regulatory measure if you all come with a measure. You all say that there is this and that association...Then why such instances are occurring at all?" CJI Kant asked.

However, the Court also called for stringent laws to deal with the content demeaning someone, particularly persons with disabilities.

"Why don't you think of a very stringent law which is on the same lines like SC/ST Act...where there is punishment if you demean them. On the same lines," CJI Kant asked Solicitor General Tushar Mehta.

Mehta agreed that humour cannot be at the cost of someone's dignity.

The Court was hearing a plea filed by YouTuber and podcaster Ranveer Allahbadia, also known as BeerBiceps, in relation to the allegedly obscene remarks he made during an episode of Samay Raina's India's Got Latent.

Along with Allahbadia's plea, the petition moved by Cure SMA India Foundation accusing Raina of insensitive remarks over the high-cost treatment for Spinal Muscular Atrophy was also listed. Raina is also alleged to have ridiculed a person with disability. Other comedians also are facing similar allegations in the case.

The petition has sought regulations for the broadcast of such online content in violation of the right to life and dignity of persons with disabilities.

The Court had earlier called for regulatory measures to ensure implementation of "reasonable restrictions" on the right to freedom of speech and expression under Article 19(2) of the Constitution.

Even as it stressed that the proposed mechanism for regulation of online content must conform to constitutional principles, the Court had remarked that "many free advisors" exist in the market when it comes to the freedom of speech.

"Suppose a race takes place between Article 19 and 21, Article 21 has to trump over Article 19," the Court had said.

Today, Advocate Prashant Bhushan, appearing for a professor with disability, said that stakeholders need to be taken into confidence while having consultations on regulations for free speech.

During the hearing, Solicitor General Mehta submitted that measures were needed in respect of user-generated content, as a person cannot do "everything and anything" under the garb of free speech.

CJI Kant agreed with the suggestion.

"It is strange that I create my own channel and keep doing things without being accountable. Yes, free speech has to be protected...suppose there is a program with adult content...there can be warning in advance with parental control," Justice Kant said.

Attorney General R Venkataramani submitted that the Ministry of Information and Broadcasting was planning to have a meeting on the issues. CJI Kant said that if any legal provision needs be enacted or amended, it must be done. Mehta said that the same was under consideration and that he had had a word with the concerned minister.

Justice Bagchi also raised concerns over "anti-national" content and questioned whether self-regulation would be sufficient to tackle it.

"When content is anti-national or disruptive of society structure...will self regulation suffice? What is the statutory foundation? Regulation has come from something which is under challenge. Those regulations cover the intermediary also. The difficulty is response time and by the time government, responds the things have gone viral with billion views," the judge said.

Bhushan responded that the term "anti-national" is vague.

"The question is will somebody writing an academic piece on history of border disputes be considered anti national?" he said.

Justice Bagchi then observed,

"We examine free speech in terms of regulated right. Of course, there cannot be a government authority to decide whether a publication is anti-national or not. But if it is per se of such nature which affects unity, integrity and sovereignty of the nation..."

CJI Kant then suggested the need for an autonomous body to decide the legal validity of online content.

"We are on the fact that when it is damaging for someone who cannot take steps then what...by the time they move court to seek damages . The damage is done," Justice added.

Sometimes the effects outweigh the benefits, Bhushan said during the discussion. In response, CJI Kant said that nothing was being done in a hurry.

Mehta said that the government was contemplating something.

"We will inform after a week," he added.

The Court then urged that a consultation be held and a proposal be put in the public domain.

"Yes, we will not let not anyone just walk into consultation...but we will speak with all," Venkataramani said in response.

The discussion then shifted to obscenity. SG Mehta particularly referred to the India's Got Latent controversy.

"Some of the things which are spoken are not unthoughtful but follows a script...that's why it is premeditative. This was perversity," he said.

CJI then suggested age verification for such content.

Meanwhile, Senior Advocate Aparajita Singh submitted that Raina had ridiculed children with disabilities.

"When such comments are made on a platform such as this, it becomes difficult for crowdfunding. Parents had undertaken all of this so that the children are at the top of their game. Samay Raina says he deposited ₹2,50,000 in our accounts. But we don't want that. We are here for our dignity. The problem for the children is also accessibility," she added.

The Court then called for stringent laws to deal with content demeaning persons with disabilities.

"You and your team need to be very careful in the future...whether within country or outside...someone was making comments in Canada also...we know all of this," CJI Kant said, while referring to Raina.

On his counsel's submission that he had made a monetary contribution to persons with disabilities, the Court said,

"They do not want it. Let us respect the self-respect they have. But have programs with them. Share their stories..."

The Court also suggested that there should be dedicated fund or corpus to donate for the treatment of the specially abled persons. It then noted that the comedians in the present case volunteered to organise at least two events in a month to generate funds for the corpus.

"We leave it to respondents 6 to 10 to persuade and invite the specially abled persons on their platforms to promote the cause of generating funds to provide timely treatment to specially abled including those suffering from SMA. We are confident that if respondent 6 to 10 show sincerity about showing their achievements...they will also come on the platform for wider publicity of their cause. We hope and expect that such few memorable events will take place before we hear matter the next date. Let such two programs be held twice a month," it ordered.

The matter is next listed after four weeks.