The Kerala High Court on Tuesday, ruled that persons seen using casteist slurs in online videos can be charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act). While making the judgement the Court noted that in the digital age, someone’s online presence and activity formed a significant part of their lives. The court made this ruling while dismissing an anticipatory bail plea by the Managing Director of “True TV”, an online news platform.

According to the case details published on Live Law, the petitioner, after knowing that an ST woman’s complains of sexual assault had led to another media personality’s arrest, held an interview with the woman’s husband and father-in-law. In the video, uploaded on YouTube as well as other social media platforms, the petitioner allegedly made offensive remarks on the woman — including on her identity as a member of a Scheduled Tribe. The petitioner claimed that the charges levelled against him don’t stand — since the woman his comments were directed at didn’t appear in the video with him.

The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, was enacted to stringently punish violent hate crimes committed against the members of these communities, and was meant to act as a deterrent. Constitutional rights against discrimination and untouchability had failed to curb crimes against the SCs and STs, and previous legislation to counter such crimes like the Protection of Civil Rights Act, 1955, operated on a much narrower scope. For instance, the 1955 act initially only provided for protection against untouchability, while failing to notice the other forms of caste-based hate crimes.

The SC/ST Act understands an ‘atrocity’ as a shockingly cruel and inhumane crime committed against an SC or ST person by someone not belonging to these communities. In the “True TV” video case, the petitioner was charged under Sections 3(1) r, 3(1) s, and 3(1) w(ii) of the Act — which penalize verbal expressions of casteism.

Section 3(1) r deals with anyone who “intentionally insults or intimidates with intent to humiliate a member of the SC or ST communities in any place within public view”; 3(1) s deals with any person who “abuses any member of an SC or ST by caste name in any place within public view”; and 3(1) w(ii) relates to anyone who uses “words, acts, or gestures of a sexual nature towards a woman belonging to an SC or ST, knowing that she belongs to an SC or ST”.

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Justice Bechu Kurien Thomas, who presided over the judgement, noted that “viewership has evolved in the digital age”. “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,” he further observed. The court also noted that since the video was available on social media and anyone could easily access it, broadcast of the video implied the presence of the victim and the public. On these grounds, the court upheld the charges made against the petitioner.

The court’s interpretation of the Act could widen its scope for the digital age, offering clearer recourse to the law. The SC/ST Act in the country has a low conviction rate, leading to frequent allegations of the Act being misused to wrongfully punish innocent upper-caste individuals. However, last year, the Supreme Court had observed that the low conviction rate in the act was because of systemic failures as opposed to fake cases. The court lamented that many SC or ST persons “face insurmountable hurdles in accessing justice from the stage of filing the complaint to the conclusion of the trial” and that they “specifically suffer on account of procedural lapses in the criminal justice system”. The court mentioned that fear of retribution from upper-caste groups, ignorance, and police apathy, prevented many SC and ST persons from even filing a case. And those who did manage to get their cases registered had to deal with faulty investigation processes of the police, this eventually resulting in non-conviction in several of the cases registered under the Act.

The Kerala High Court judgment has potential for widening the scope of the Act. Caste slurs and caste-based violence on video and social media are an increasingly common way of circumventing legal restrictions on casteist speech and action. Often, casteist slurs are used interchangeably with other swear words in online interactions. With the rise of censorship-free OTT platforms, there is an increased and unfiltered use of casteist slurs on streaming shows too. With the court deciding that easy access to casteist content would imply the presence of a victim and public, it remains to be seen if these online interactions or future OTT shows that prominently feature everyday casteism will be more mindful of casteism than before.