In digital age, online abuse will attract SC/ST Act; physical presence of victim not necessary: Kerala High Court

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The Kerala High Court on Tuesday held that abuses and insults made on an online platform against a person belonging to a Scheduled Caste or Scheduled Tribe would attract the offences under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act [Sooraj V Sukumar v State of Kerala & Anr.]
Justice Bechu Kurian Thomas held so while declining to grant anticipatory bail to a YouTuber who had made disparaging remarks against a member of a Scheduled Tribe in a video uploaded to the platform and shared on other social media.

“The digital presence of persons through the internet has brought a change to the concept, purport and meaning of the word ‘public view’ in sections 3(1)(r) and 3(1)(s). When the victim accesses the content already uploaded to the internet, she becomes directly and constructively present for the purpose of applying the penal provisions of the Act. Thus, when insulting or abusive content is uploaded to the internet, the victim of the abuse or insult can be deemed to be present each time she accesses it,” the Court stated.

The Court further held that in the digital era, the presence of the person will also include online presence or digital presence.

“Prior to the advent of the internet, a speech made within an enclosed area could be heard or viewed only by those present inside the enclosed space. However, after the emergence of the internet, the uploaded content can be viewed or heard by any member of the public at any time, as if they are present either viewing or hearing it, not only at the time it was telecasted but even when the programme is accessed. Each time a person accesses the content of the uploaded programme, he or she becomes present, directly or constructively, in the broadcast or telecast of the content,” the Court said in its order.

The order was passed on an application for pre-arrest bail moved by the Managing Director of an online news channel called “True TV”.

The petitioner was enraged by the arrest of his friend and fellow media person on a sexual assault complaint moved by a woman.

The petitioner then interviewed her husband and father-in-law, uploaded it on YouTube and shared it through other social media platforms, which allegedly showed him spewing insult and hatred against the victim who belongs to a Scheduled Tribe.

A crime was subsequently registered alleging commission of various bailable offences under Indian Penal Code and Information Technology Act are alleged against the petitioner, as well as the non-bailable offences under sections 3(1)(r), 3(1)(s) and 3(1)(w)(ii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Advocate Babu S Nair, appearing for the petitioner, submitted that the offences under the SC/ST Act are prima facie not attracted, and hence the application for pre-arrest bail is maintainable.

He contended that to attract the offences alleged, the insult, intimidation, or abuse must take place not only within public view but should also be in the presence of the victim.

Since the victim was not physically present during the interview, the offences are not attracted entitling him to anticipatory bail, it was submitted.

On the other hand, advocate K Nandhini, appearing for the victim, submitted that the petitioner had intentionally insulted, abused and humiliated the victim on a public platform.

Adding to this, Public Prosecutor KA Noushad argued that the objectives of the SC/ST Act must be given a purposive interpretation in the current digital era, in tune with the intention sought to be achieved.

The Court noted that the following three ingredients are required to be satisfied to make out an offence under Sections 3(1)(r) and 3(1)(s) of the SC/ST Act:

The accused must not be a member of the scheduled caste or scheduled tribe;

The insult or intimidation or abuse must be made with intent to humiliate a member of the particular community; and

The act must have been committed within public view.

On going through the transcript of the video published by the petitioner, the Court opined that the first two ingredients are made out, since he had repeatedly used demeaning words related to the victims identity as part of a Scheduled Tribe.

It further concurred with the prosecutor that a purposive interpretation is required to be given in the digital age where the concept of viewership has evolved, and that the doctrine of ongoing statute must be applied.

Since the video published by the petitioner is still available on social media and can be viewed by anyone on a mere click or swipe, the Court opined that it implies the presence of the public and the victim, in the broadcast of the video.

“Thus, after coming into force of the digital era, the presence of the person contemplated by the judgment of this Court in E.Krishnan Nayanar’s case will also include the online presence or digital presence. Any other interpretation will restrict the applicability of the Act and make the statute lifeless to the changed circumstances,” the Court held.

Viewed from this lens, the Court held that offences under the SC/ST act are prima facie attracted and, therefore, dismissed the anticipatory bail plea.

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