Insulting Content Against SC/ST On Facebook Wall Can Be Punishable, Regardless Of Privacy Settings: Delhi HC [Read Judgment]

The Delhi High Court on Monday ruled that insulting or intimidating content against a member of the Scheduled Castes or Scheduled Tribes on the Facebook wall can be punishable, regardless of the fact that the privacy settings were changed to ‘private’.

“When a member registered with facebook changes the privacy settings to “public” from “private”, it makes his/ her writings on the “wall” accessible not only to the other members who are befriended by the author of the writings on the “wall”, but also by any other member registered with facebook. However, even if privacy settings are retained by a facebook member as “private”, making of an offending post by the member – which falls foul of Section under Section 3(1) (x) of the Act, may still be punishable… if any of the befriended facebook members of the author of the offending post is an independent and impartial and not interested in any of the parties, i.e. is not a person having any kind of close relationship or association with the complainant. Therefore, to my mind, it would make no difference whether the privacy settings are set by the author of the offending post to “private” or “public”,” Justice Vipin Sanghi observed.

The Court was hearing a petition filed by one Ms. Gayatri, demanding quashing of an FIR registered against her under Section 3(1) (x) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989. Section 3(1) (x) of the Act prohibits intentional insult or intimidation, with the intention to humiliate a member of the Scheduled Castes or Scheduled Tribes, by a non-member of an SC/ST Tribe.

The FIR was registered against her by her co-sister who belonged to one of the Scheduled Castes. The complainant co-sister had alleged that the Petitioner was “harassing and abusing my caste on social network sites/ Facebook” and that she used bad words for “Dhobi community”.

The Petitioner had, on the other hand, submitted that the Facebook posts do not disclose intentional insult or humiliation towards the complainant individually, and included comments on a community as a whole. She had further submitted that the posts were not intended to be seen by the complainant, as she had been blocked by the Petitioner.

Besides, the Petitioner had contended that while the provision necessitated the insult to take place “within public view”, the alleged insult in the present case had occurred on the Petitioner’s Facebook wall, which he submitted was not a place within public view. She had further submitted that even though her privacy settings were edited to ‘public’, it would not make the same a place within public view.

The Court partly agreed with the Petitioner to hold that the offending posts on her Facebook wall were not directed against any individual member of any Scheduled Caste or Scheduled Tribe. It observed that generalized statements against all and sundry, and not against specific individual belonging to the SC/ ST, would not constitute an offence u/s 3(1) (x) of the SC/ST Act. It, therefore, quashed the FIR against the Petitioner.

The Court then went on to observe that “public view” would mean a place within public view, and not a public place. Hence, it could even be a private place, but within public view.

“Pertinently, Section 3(1)(x) of the Act does not require that the intentional insult or intimidation with intention to humiliate a member of the Scheduled Caste or Scheduled Tribe should take place in the presence of the said member of the Scheduled Caste or Scheduled Tribe. Even if the victim is not present, and behind his/ her back the offending insult or intimidation with intention to humiliate him/ her – who is a member of the Scheduled Caste or a Scheduled Tribe takes place, the same would be culpable if it takes place within public view,” Justice Sanghi further explained.

Read the Judgment Here