"The State has to wake up and legislate appropriate enactments to curtail the social media war", observed the Kerala High Court on Monday, highlighting the limitations of the Information Technology law as it stands today.
The Court was considering the bail application of a female anchor of an online news channel which is airing news on social media platforms of Youtube and Facebook. A case is registered against the petitioner alleging offences punishable under Section 294(b) IPC, Section 67 of the Information Technology Act, 2000 and Section 120(o) of the Kerala Police Act. It is the prosecution's case that the channel published a news item which is lascivious and appeals to the prurient interest and hence, the act amounts to, inter alia, an offence under Section 67 of the Information Technology Act.
The Single Judge made a reference to the 2019 decision of the High Court in Sreekumar's case where the Court was "constrained" to "take note of certain disturbing trends in our society and community whereby incidents of intolerance and disrespect for the views of others and the respect and harmony for 'others' is decreasing day by day which has very dangerous portents for the future of our civil society and democratic polity at large".
"Even after this judgment, the social media fight is continuing. The verbal fight in social media is increasing. If one person post a defamatory or lascivious comment in the social media, instead of approaching the police, the others will respond to the same with more vulgar words. There is no end to it. This is a situation where the rule of law will fail. The parallel societies who are not concerned about the rule of law will emerge. This is a grave situation", lamented the Single Bench on Monday.
"In the light of the decision in Sreekumar's case, some of the abusive and unparliamentary comments may not come within the four corners of Section 67 of the Information Technology Act. In such situation, the State has to wake up and legislate appropriate enactments to curtail the social media war. It is the duty of the State to maintain the public order", urged the judge.
Moreover, the Court noted that as per the existing penal law itself, such culprits can be booked, "for which state police should be vigilant". Accordingly, it required the registry to forward a copy of this order to the Director General of Police and the Chief Secretary of the Government of Kerala for taking appropriate action in accordance to law.
On behalf of the present petitioner, it was submitted that, even though such a news item was transmitted through the online news channel, she is regretting some of the statements mentioned in the news item. "She stated that, she gave such a statement because, abusive and sexual languages are used by different people in the social media against her and because of that reason and because of that tension, such a statement was given in the online news channel", reads the order.
"Since the learned counsel for the petitioner has got a contention that, even if the entire allegations in the complaint are accepted, no offence under Section 67 of the Information Technology Act will attract, I have to consider that point also", reflected the judge, reverting to the said provision which stipulates 'Punishment for publishing or transmitting obscene material in electronic form'.
"A reading of Section 67 of the Information Act, 2000 it is clear that 'or' is used in between 'lascivious', 'appeal to the prurient interest' and 'if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.' Therefore, these are not ingredients to constitute the offence but these are distinct offences. A person committed any of this act, Section 67 of the Information Technology Act is attracted", opined the Court.
The bench clarified that the following acts amount to an offence under Section 67: Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which
i) is Lascivious.
ii) Appeal to the prurient interest.
iii) If its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
"Therefore, if any of the above acts are committed by a person, an offence under Section 67 of the Information Technology Act is attracted", iterated the Court. The petitioner produced the complete text of the disputed news item published on the online TV channel. "It is a fact that, it is extremely unparliamentary and it cannot be extracted in a judicial order", said the judge. "But the sum and substance of the contents is like this:
(a) We want to say to the people who give their wife and children for the sexual satisfaction of Arabies.
(b) Those who are enjoying sex with their mothers- we are not living at their expense.
(c) Don't think that, we are people like your mother and sister who are ready to undress.......
These are the contents in brief in the complaint mentioned. Of course not a word by word translation", reads the order.
The High Court was of the view that whether these statements will not attract Section 67 is a matter to be investigated by the police. The bench placed reliance on Sreekumar v. State of Kerala where this Court observed that in order to attract Section 67, words used should be capable of arousing sexual thoughts in the minds of hearers and should involve lascivious elements arousing sexual thoughts or feelings or words must have the effect of depraving persons, and defiling morals by sex appeal or lustful desires etc.
"I do not want to make any observation whether the above news item will come within the four corners of Section 67 of the Information Technology Act. Some of the words as I said earlier has no corresponding words in English. Some of the words are abusive and unprintable in a judicial order. But these are matters to be investigated by the police", said the judge.
The bench further recorded that the maximum punishment that can be imposed under Section 67 is three years- "The Hon'ble Supreme Court and the Full Bench of this Court observed that in cases in which maximum punishment is less than seven years, during the Covid-19 period and lockdown period, the bail application is to be considered liberally"
"I also consider that the petitioner is only an anchor of the online news channel. I also take note of the fact that, she is a lady and there is no criminal antecedents against the petitioner. In such circumstances, I feel that this bail application can be allowed", decided the Court. Moreover, the bench took note that considering the need to follow social distancing norms inside prisons so as to avert the spread of the novel Corona Virus, the Supreme Court and a Full Bench of this Court has issued various salutary directions for minimising the number of inmates inside prisons. Besides, the Court acknowledged that it is a well accepted principle that the bail is the rule and the jail is the exception.
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