New Delhi: The Supreme Court on Thursday (November 27) suggested that Aadhaar-based age verification could be implemented for regulating access to online content that may be deemed "obscene", Bar and Bench reported.

A bench of Chief Justice of India Surya Kant and Justice Joymalya Bagchi was hearing a batch of petitions related to comedians and podcasters who have recently landed in trouble over their online conduct.

The top court stressed the need for displaying a warning stating that such content may not be suitable for audiences of all ages. 

"Obscenity can be in books, paintings etc. If there is an auction… there can be restrictions also. The moment you switch on the phone and something comes which you don't want [to see] or is forced on you, then what?" Justice Bagchi observed, as quoted in the report.

CJI Kant added that though warnings are usually there, it can be followed by Aadhaar-based age gates as possible mechanisms.

"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 hearing was related to a plea filed by YouTuber and podcaster Ranveer Allahbadia, who goes by BeerBiceps, in relation to the controversy surrounding the remarks he made during an episode of comedian Samay Raina's show India's Got Latent.

The bench reiterated the need to regulate online content, adding that an autonomous body was required to decide what can and cannot be allowed.

"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 bench asked.

The chief justice added that "self-styled" bodies will not be enough to address the situation.

Fundamental rights would have to be balanced, the bench said, and  added that it would be the last one to 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.

On ‘anti-national’ content

During the hearing, 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,” Justice Bagchi said, adding that the regulations would cover the intermediary also. 

“The difficulty is response time and by the time the government responds, things would have gone viral with a billion views," he said.

Advocate Prashant Bhushan, who was appearing for a professor with disability, argued that the term "anti-national" was vague.

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

Justice Bagchi then observed, "We examine free speech in terms of regulated rights. 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.

Mehta said that the government was contemplating on the same. "We will inform after a week," he said.

The top court urged that a consultation be held and a proposal be put in the public domain.

On persons with disabilities

During the same hearing, the court also heard a petition from Cure SMA India Foundation, accusing Raina of insensitive remarks over the high-cost treatment for Spinal Muscular Atrophy, and called for stringent laws to deal with derogatory content, particularly on persons with disabilities, possibly on the lines of the SC/ST Act.

Raina allegedly ridiculed a person with disability. Comedians Vipul Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar and Nishant Jagadish Tanwar were also named in the case.

"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, as per Bar and Bench.

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

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

In previous hearings, the apex court has called for regulatory measures to ensure the "reasonable restrictions" on the right to freedom of speech and expression under Article 19(2) of the constitution.

In Thursday’s hearing, 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, Bar and Bench reported.

CJI Kant agreed and said: "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."

On Raina’s counsel's submission that he had made a monetary contribution to persons with disabilities, the bench said, "They do not want it. Let us respect the self-respect they have. But have programs with them. Share their stories."

The top court called for stringent laws to deal with content demeaning persons with disabilities.

Attorney General R Venkataramani submitted to the court that the Ministry of Information and Broadcasting was planning a meeting on the issues. 

CJI Kant said any legal provision that needs to be enacted or amended “must be done”. 

To this, Mehta said it was already under consideration.

The bench also suggested that there should be a dedicated fund or corpus to donate for the treatment of the specially abled persons, the report said.

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