Kochi: Insulting remarks, made online, against someone from the Scheduled Caste or Scheduled Tribe would still attract the provisions of the SC/ST Act as in the digital era every time the victim accesses the abusive content it would be deemed that the offensive remarks were made in their presence, the Kerala High Court has ruled.
The ruling by the High Court came while dismissing the anticipatory bail plea of a Youtuber who had allegedly made insulting remarks against a woman from the ST community in an interview of her husband and father-in-law, which was uploaded on social media sites like YouTube and Facebook.
Fearing arrest, the Youtuber had moved the court seeking anticipatory bail on the ground that the insult or intimidation, or abuse must take place not only within public view but should also be in the presence of the victim.
The accused had also contended that the victim was not present during the interview, and hence the provisions of the SC/ST Act are not attracted.
Opposing the plea, the prosecution had contended that in the digital era, the interpretation that the victim must be present while the statement was made would lead to anomalous results and that the statute would become redundant if such an interpretation was adopted.
The victim's counsel also opposed the plea saying a perusal of the written text of the interview itself was sufficient to satisfy that the accused was intentionally insulting, intimidating, humiliating and even abusing a member of a Scheduled Tribe within public view.
Under the Scheduled Castes and Scheduled Tribes (SC/ST) (Prevention of Atrocities) Act, for an offence of atrocity to be made out, the accused should not be a member of SC/ST, insult or intimidation or abuse must be made with an intent to humiliate a member of that community and it must be done in public view.
After hearing all sides, the court said that a perusal of the interview statements indicates use of "demeaning" words at several places and the accused also referred to the victim as an 'ST' which shows he knew she was a member of a Scheduled Tribe.
"Thus, the words used by the petitioner in the interview are prima facie insulting, humiliating and abusive, made with the knowledge that the victim belongs to a Scheduled Tribe community.
"The interview uploaded by the petitioner is an affront to women and the victim in particular. Therefore, the content of the uploaded interview satisfies the first two ingredients (to make out an offence under SC/ST Act)," it said.
Regarding the contention of the accused that the victim was not present when the interview was conducted, the court said that adopting an interpretation which defeats the intent and purpose of the Act must be avoided.
The intent of the Act was to prevent insults and humiliation targeted against SC/ST communities and such a statute should be able to adapt to the changing circumstances by embracing the advancements in technology so that it does not become "a dead letter".
"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," the court observed.
Therefore, each time a person accesses the content of an uploaded programme, they become present, directly or constructively, in the broadcast or telecast of the content, the court ruled.
It further ruled that after the coming into force of the digital era, presence of a person "will also include the online or digital presence".
"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.
In the light of the above circumstances, I am of the view that though bailable offences alone are alleged against the petitioner under the Indian Penal Code, 1860 and non-bailable offence under the Information Technology Act, 2000, since the offences alleged under section 3(1)(r) and section 3(1)(s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 cannot be said to be not made out, this application for anticipatory bail is not maintainable," the court said.
