Victim Becomes Constructively Present When Content Uploaded On Internet Is Accessed – Kerala HC Holds That Section 3 Of SC & ST Act Will Apply, Denies Anticipatory Bail To YouTuber

The Kerala High Court has recently observed that the presence of the person as contemplated in the case- E.Krishnan Nayanar v. Dr.M.A.Kuttappan, and Others also includes online presence.

The Bench of Justice Bechu Kurian Thomas opined- "Thus, after coming into force of the digital era, the presence of the person contemplated by the judgment of this Court in E.Krishnan Nayanar's case will also include the online presence or digital presence."

There are three ingredients that are required to be satisfied to make out an offence under section 3(1)(r) and section 3(1)(s) of the SC-ST Act.

They are- (i) The accused must not be a member of the scheduled caste or scheduled tribe. (ii) The insult or intimidation or abuse must be made with intent to humiliate a member of the particular community, and (iii) The act must have been committed within public view.

In the Judgment in E.Krishnan Nayanar's case, a single Judge of Kerala High Court had opined that the words within 'public view' in section 3 (1)(x) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 Act (prior to amendment) are referable only to the person insulted and not to the person who insulted him and that at the time of the alleged insult, the person insulted must be present.

In the present case the Court was adjudicating upon an anticipatory bail plea of a vlogger who had allegedly insulted a woman belonging to Scheduled Tribe by telecasting an interview through his online channel.

It was contended by the petitioner-vlogger that to attract the offences under section 3(1)(r) and section 3(1)(s) of the said 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. Reliance in this regard was placed upon the decision in E.Krishnan Nayanar v. Dr.M.A.Kuttappan, and Others.

The counsel for the petitioner-vlogger vehemently contended that admittedly the victim was not present during the interview, and hence the provisions of the Act are not attracted.

Advocate Babu S.Nair appeared for the petitioner, Advocate K.Nandhini, appeared for the victim and Public Prosecutor K.A.Noushad appeared for the state.

The Court noted that normally, the penal statutes are to be construed strictly, however, the aforesaid traditional rule had undergone a change in recent times.

The Court observed thus "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. Each time a person accesses the content of the uploaded programme, he or she becomes present, directly or constructively, in the broadcast or telecast of the content."

Therefore the Court held that after coming into force of the digital era, the presence of the person contemplated in E.Krishnan Nayanar's case will also include the online presence or digital presence.

"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.", the Court noted

"…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 held while dismissing the anticipatory bail plea of the vlogger.

Cause Title- Sooraj V. Sukumar v. State of Kerala and Ors.

Click here to read/download the Order