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...

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

Hannah M Varghese

The digital world has transformed the concept of viewership, the Court added.

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