Effective Laws Needed To Combat Cyber Bullying In Age Of Social Media But Even Newly Enacted BNS Failed To Address It: Kerala High Court

“It is of grave concern that, in this digital age, there is a lack of comprehensive and effective legislation to combat such misconduct, which, in my view, necessitates the urgent attention of the authorities concerned...However, there remains a conspicuous absence of legal provisions that directly address the issue of cyberbullying or online harassment, particularly those incidents devoid of any sexual context. Further exacerbating this concern is the fact that, despite the enactment of the Bharatiya Nyaya Sanhita, 2023, in 2024, no legal provisions have been introduced to specifically address this form of online harassment. This gap in the legal framework, in my opinion, requires immediate rectification by the authorities concerned to ensure that cyberbullying, in all its forms, is adequately regulated. To date, no other relevant provisions have been brought to my attention by either party.”

The Court was considering an appeal by an accused booked under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act., Information Technology Act and IPC, who was denied anticipatory bail by the Sessions Court. 

The case against the appellant/accused is that he downloaded videos uploaded by an editor of True T.V, in which the complainant (respondent no. 2) was shown as a person arrested for immoral traffic and edited the video to include an interview with the complainant's husband. 

In the video by the appellant on his YouTube channel, Visal Media, the complainant was described as having deserted her husband and engaging in immoral activities with multiple men. The complainant stated that he had forgiven the complainant after she eloped with another man, but she did not mend her ways after that and was still leading a wayward life. The video described her as a drug addict and belonging to a sex racket and also showed her in a room with another man.

The appellant was booked for offences under Section 354A(1)(iii) (showing pornography against the will of a woman), 354 A(1)(iv) (making sexually colured remarks), 509 (word, gesture or act intended to insult the modesty of a woman) of the Indian Penal Code, Sections 66E (punishment for violation of privacy), 67A (punishment for publishing or transmitting of material containing sexually explicit act etc., in electronic form) of the IT Act and Section 3(1)(r),(s), w(ii) and Section 3(2)(va) of the SC ST Act. 

The appellant contended that the materials on record did not make out any offences under the SC/ ST Act. He said that he did not mention the caste name of the complainant in the video. The accused relied on Hitesh Varma v State of Uttarakhand (2020) where the Supreme Court held that an insult to person is not an offence under the SC/ ST Act unless the insult is made on account of the person belonging to Scheduled Caste/ Tribe. He argued that therefore the offence under Section 3(1)(r) of the Act won't stand and the bar under Section 18 or 18A of the Act (bar on giving anticipatory bail) would not attract in this case.

After seeing the video, the Court opined that the content of the video was derogatory and constituted online harassment. It said, "The content of the video in question is indisputably derogatory and constitutes a clear instance of online harassment and abuse directed at the 2nd respondent/informant."

Expressing serious concerns over the increasing instances of cyberbullying, the Court remarked that many individuals are evading accountability after making derogatory and abusive remarks against others. 

“In this era of social media, individuals operate under the misconception that the right to freedom of speech and expression allows them to produce any form of content, make unfounded criticisms, issue abusive remarks or engage in derogatory conduct towards others, all while evading accountability. This raises serious concerns, particularly in the light of the growing prevalence of cyberbullying, a phenomenon that remains inadequately addressed by current legal frameworks.”

The Court pointed out that though Indian Penal Code had provisions relating to stalking and voyeurism, there was no law to address this form of online harassment. The Court also highlighted that even the IT Act does not define or address cyberbullying. The Court opined that the authorities need to look into this gap in legal framework.

Pursuing the video, the Court noted that the appellant in the video stated that the complaint gave a false complaint against an editor of Crime Online. The appellant stated that instead of being thankful to the editor for giving her a job in his office, the complaint filed a false complaint against him for which he was arrested. The Court noted that in the video, the accused advised on how spouses should treat each other and in what manner martial life should be fostered. 

While noting that the video was derogatory, the Court said that it was doubtful that a case under Section 67A of the IT Act was made out. The Court noted that to attract Section 66E IT Act, the accused must transmit the image of a 'private area of a person' without their consent. It further noted that for Section 67A IT Act, an offence is made out only when a 'sexually explicit act or conduct' is published or transmitted. 

With respect to Section 3(1)(r) of the SC/ ST Act, the Court opined that an offence was made out. The Court said that though there was no reference to the caste name of the complainant, the contents of the video were abusive, derogatory and depicted the complainant as a woman of loose morals/ character or sexually promiscuous. It also noted that the video was watched by more than 1 Lakh people.

The court stated that the contents of the video were an insult to the victim and thus the bar under Section 18 of the SC ST Act would not apply. 

Accordingly, the petition was dismissed.

Counsel for the Appellants: Advocates K. Aboobacker Sidheeque, Muhammed Ibrahim Abdul Samad, Subin K. Sudheer

Counsel for the Respondents: Advocates K. Nandini, Vipin Narayan (Senior Public Prosecutor)

Case No: Crl.A 842 of 2024

Case Title: Fakrudeen K. V. @ Fakrudheen Panthavoor v State of Kerala and Another

Citation: 2025 LiveLaw (Ker) 209