SC-ST Act | Victim's Presence When Insulting Remarks Are Made Includes "Online Presence": Kerala HC Denies Pre-Arrest Bail To YouTuber

The Kerala High Court on Tuesday denied pre-arrest bail to a YouTuber who allegedly insulted a woman belonging to a Scheduled Tribe through an interview published on social media on the ground that a prima facie case under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act was made out against him. 

In a notable observation, Justice Bechu Kurian Thomas ruled that the digital presence of the victim through the internet is sufficient to qualify as 'public view' as contemplated under Section 3 of the Act. 

"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 added that each time a person accesses the content of the uploaded programme, they become present, directly or constructively, in the broadcast or telecast of the content. 

"The digital world has transformed the concept of viewership. Unlike a speech made within an enclosed space in front of an audience, the content, when uploaded, has its impact felt the world over. The influence of the internet is in its universal accessibility. 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." 

Recently, a woman employee working under journalist T.P Nandakumar at his online channel had accused him of verbally abusing her and forcing her to make a morphed video of a lady minister. Nandakumar was arrested and released on bail last week. 

The petitioner is the Managing Director of an online news channel 'True TV', which is professed to have a viewership of more than five lakhs.

Provoked by the arrest of a friend and fellow media person, the petitioner telecasted an interview of the woman's husband and father-in-law on his channel. The interview which was aired through the petitioner's online media and was uploaded on YouTube and circulated through Facebook as well.

He was soon booked on the allegation that the interview spewed insult, hatred and ill-will against the members of the Scheduled Tribe community, apart from abusing and ridiculing the victim. The petitioner is accused of committing offences punishable under sections 354A(1)(iv), 509, 294(b) of IPC, Sections 66E and 67A of the Information Technology Act and Sections 3(1)(r), 3(1)(s) and 3(1)(w)(ii) of the SC/ST Act. 

Apprehending arrest in this case, the petitioner moved the High Court seeking pre-arrest bail.

Section 18 of the SC/ST Act curtails the right of an accused alleged of offences committed under the Act to seek pre-arrest bail. The Supreme Court has held that despite the bar under sections 18 and 18A, in exceptional cases where a prima facie case under the Act is not made out, the bar of sections 18 and 18A will not be attracted. 

Therefore, the Court questioned the maintainability of the bail application.  

Advocate Babu S. Nair appearing for the petitioner contended that the offences under the SC/ST Act are prima facie not attracted, and hence the application is maintainable. It was contended that to attract the offences under sections 3(1)(r) and 3(1)(s) of the Act, the insult or intimidation, or abuse must take place not only within public view but should also be in the presence of the victim. He vehemently contended that the victim was not present during the interview, and hence the provisions of the Act are not attracted.

Advocate K. Nandhini appearing for the victim argued that a perusal of the written text of the interview itself is sufficient to satisfy that the petitioner was intentionally insulting, intimidating, humiliating and abusing a member of a Scheduled Tribe within public view and aimed the words against the victim with the knowledge that she is a member of the Scheduled Tribe. 

Public Prosecutor Noushad K. A submitted that the benefit of pre-arrest bail cannot be granted to the petitioner in the present case since pre-arrest bail can be granted to an accused only when a prima facie case under the Act is not made out. It was submitted that undoubtedly the offences under the Act are made out, and therefore petitioner cannot file an application for pre-arrest bail. 

The predominant issue was whether a prima facie offence under sections 3(1)(r), 3(1)(s) and 3(1)(w)(ii) or any one of those provisions were made out.

The Court found that if any of the offences are made out, the application is not maintainable. On the other hand, if a prima facie case is not made out, the issue will narrow down to whether the petitioner is entitled to be granted pre-arrest bail.

Three ingredients should be satisfied to make out an offence under sections 3(1)(r) and 3(1)(s):

• 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
• The act must have been committed within public view.
  

The Court found that the petitioner is not a member of the Scheduled Caste or Scheduled Tribe.

Further, on a perusal of the statements made in the interview, it was noticed that he had used 'words' of a demeaning nature at several stages and referred to the petitioner as an 'ST' on more than one occasion, which implies that he knew that the victim is a member of the 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."

The Judge observed that though the argument that the victim was not present when the interview was taken is impressive at first blush, it was unacceptable. To substantiate this observation, the Court analysed the meaning of 'public view' through several precedents. 

It was found that normally, the penal statutes are to be construed strictly and conduct which is not otherwise an offence cannot be converted as an offence by interpretation. However, it was added that this traditional rule has undergone a change in recent times. 

"When the surrounding circumstances undergo a drastic change after the statute was enacted, the rigid application of the above maxim may not be conducive. Future discoveries and changes in technologies may have to be brought within the purview of the statutes."

The Court recalled that one of the main objectives of the Act's intent is to eliminate offences involving practices against members of the Scheduled Caste and Scheduled Tribe communities. It was added that under certain circumstances, the language of a statute must be interpreted as embracing advancements in technology to avoid the statute becoming a dead letter.

Accordingly, the Single Judge applied the 'doctrine of the ongoing statute' to the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act to treat it as an ongoing statute and to keep it alive amidst the changed circumstances.

When the statute was enacted, the concept of online presence through the internet or social media was not in contemplation.

In this case, the interview was published through the petitioner's online media channel and the offending content is still available on YouTube and other social media.

"Publication in the digital world is done by uploading the content. Once uploaded, the content can be viewed by anyone from any part of the world with the 'click of a button' or 'the swipe of a finger'."

Thus, it was held that in the digital era, the presence of the person 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 third ingredient was also thus satisfied.

"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."

It was however clarified that the observations in the judgment are solely for this bail application, and any observation on facts shall not be binding in any other proceeding.

The pre-bail application was therefore dismissed.

Case Title: Sooraj V. Sukumar v. State of Kerala & Ors. 

Citation: 2022 LiveLaw (Ker) 382

Click Here To Read/Download The Order