New Delhi: The Kerala high court on Tuesday, July 26, denied anticipatory bail to a Youtuber accused of making disparaging statements against a member of the Scheduled Tribe (ST) community on various social media platforms, noting that in the digital era, the presence of a person includes their digital presence as well.
The court’s ruling came while hearing a plea for anticipatory bail by the managing director of ‘True TV’, an online news platform.
According to Bar and Bench, the petitioner, aggrieved by the fact that allegations of sexual assault by a woman of the ST community had led to the arrest of the petitioner’s friend and fellow media person, had interviewed the woman’s husband and father-in-law.
The interview, in which the petitioner allegedly made offensive remarks relating to the woman’s identity as a member of a Scheduled Tribe, was uploaded to Youtube and subsequently shared on other social media platforms as well.
This attracted charges against the petitioner under some bailable sections of the Indian Penal Code (IPC) and the IT Act, however, importantly, it also drew non-bailable charges under Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act (SC/ST Act) Sections 3(1) r, 3(1) s, and 3(1) w(ii).
Section 3(1) r relates to anyone who “intentionally insults or intimidates with intent to humiliate a member of the SC of ST communities in any place within public view”; 3(1) s relates to anyone who “abuses any member of an SC or ST by caste name in any place within public view; and 3(1) w(ii), for anyone who uses “words, acts or gestures of a sexual nature towards a woman belonging to an SC or ST, knowing that she belongs to an SC or ST”.
Appearing for the petitioner, advocate Babu S. Nair argued that the offences under the SC/ST Act were not, prima facie, attracted because the aforementioned insults, abuses and so on would need to have been made not only in the public view, but also in the presence of the victim.
Since the victim was not physically present during the interview, the petitioner’s counsel argued that the offences under the SC/ST Act – which are non-bailable, while the other charges under the IPC and the IT Act are bailable – are not attracted and thus, the petitioner’s bail plea was maintainable.
The counsel for the victim, K. Nandhini, on the other hand, submitted that the offences were committed on a public platform, and public prosecutor K.A. Noushad argued that the objectives of the SC/ST Act must be given a “purposive interpretation” in the digital era.
Justice Bechu Kurian Thomas concurred with the public prosecutor’s contention in this regard since the concept of ‘viewership has evolved in the digital age.
“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,” Bar and Bench quoted the court as saying.
The court also noted that the ‘doctrine of ongoing statute’ must be applied and that, since the video in question was still available on social media and e=anyone could easily access it, it implied the presence of the victim and the public in the broadcast of the video.
“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.
Citing the case of E. Krishan Nayanar in the Kerala high court, the bench noted that the presence of a person will also include their digital or online presence.
“Any other interpretation will restrict the applicability of the Act and make the statute lifeless to the changed circumstances,” the court noted while holding that the charges under the SC/ST Act were, prima facie, applicable and thus dismissed the plea for anticipatory bail.