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Thursday, December 1, 2022

Kerala High Court: Offensive remarks on social media within purview of SC/ST Act

New Delhi— In light of the continued rise in cases involving atrocities against scheduled castes/scheduled tribes, a decision of the Kerala High Court comes as a welcome step. In view of the increasing numbers of cyber-crimes in this digital age, the Kerala High Court has ruled that the provisions of the SC/ST Act [Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989] will apply in cases of derogatory remarks that are made online against a person belonging to a scheduled caste (SC) or a scheduled tribe (ST).

While hearing the petition of a YouTuber, the Court said that, in this digital era, each time an abusive remark posted about a victim is available in the public [online] space, it will be considered that the offensive comment was made in their presence. That is, the SC/ST Act is applied when objectionable remarks are made publicly and in the presence of the victim.

High Court heard a YouTuber’s advance petition

The Kerala High Court was hearing an appeal by a YouTuber for anticipatory bail. The court dismissed the appeal and stated in its ruling that the YouTuber had allegedly made derogatory remarks against a woman from the ST community during an interview with the woman’s husband and father-in-law. The interview was uploaded on social media sites such as YouTube and Facebook. This was unacceptable.

In the High Court, the petitioner argued that since the victim had not been present during the interview, the provisions of the SC/ST Act did not apply.

On the other hand, the prosecution opposed the petition by arguing that in this digital era, to say that the victim has been present will lead to an anomalous outcome, and if this kind of argument is accepted, the law would be trivialized.

The counsel for the victim, while opposing the petition, said that a simple perusal of the text version of the interview was sufficient to see that the accused was deliberately insulting a member of a scheduled tribe in public.

The interview was unacceptable

After hearing the arguments made by both sides, the court, while giving its verdict, observed that, a reading of the interview statements indicated that “derogatory” terms were used on several occasions, in which the accused also made references to the victim as an(ST). Which clearly shows that the YouTuber knew that the victim was a member of a scheduled tribe. The Court also observed that the terms used by the petitioner in this kind of interview are prima face offensive.

The court referred to the age of social media while stating that when the content of a programme is publicly available, the person [being referred to] is considered to be directly or constructively present every time the content is accessed. That is, if a video is made about a person, then they will be considered to be present [every time the video is played].

The court said that, before the advent of the Internet, a speech made in an enclosed space could only be heard or seen by the people present in that space. But since the arrival of the Internet, the content uploaded on social media can be viewed or heard by any person at any time. Uploaded content is not only viewed and heard at that time it is being broadcast, but it can be viewed by people at a later time too. Because it remains accessible at all times on the Internet. Every time a person accesses an uploaded programme through its Internet link, they are deemed to be directly or constructively present while viewing the content.

The High Court cited the case of E. Krishna Nayanar and said that the presence of a person also included their digital or online presence.

Repealed Section 66-A went against freedom of speech

Earlier, the Information Technology [IT] Act had a provision under section 66-A, in which posting content with offensive, inflammatory and provocative sentiments on social media was a punishable offense. But this section was repealed by the Supreme Court after it found that these restrictions went against the fundamental right to freedom of speech and expression guaranteed in Article 19.1. (a) of the Constitution. Since the repeal of this section of the IT Act, sections 499, 500, and 501 (criminal defamation) of the IPC [Indian Penal Code] can be invoked against the dissemination or publication of derogatory statements on social media. Under these sections, a person can claim in front of a magistrate defamation in the case of false comments made against them on social media. This offence is punishable with imprisonment for at least two years.

यहाँ हिन्दी में भी पढ़ें: सोशल मीडिया पर की गई आपत्तिजनक टिप्पणी एससी/एसटी एक्ट के दायरे में: केरल हाईकोर्ट

[Story Translated By Lotika Singha]

Poonam Masih
Poonam Masih
Poonam Masih, Journalist The Mooknayak

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