Shajan Skaria vs The State of Kerala & Anr.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.3(1)(r), 3(1)(u) – Appellant, Editor of an online news channel published a video on YouTube allegedly making derogatory statements and levelling various allegations against the complainant – Ingredients necessary to constitute offences under Sections 3(1)(r) and 3(1)(u), if prima face disclosed in the FIR – Offence under Sections 3(1)(r) and 3(1)(u), if made out:

Held: No – All insults or intimidations to a member of the Scheduled Caste or Scheduled Tribe will not amount to an offence under the 1989 Act, unless such insult or intimidation is on the ground that the victim belongs to Scheduled Caste or Scheduled Tribe – Offence under Section 3(1)(r) is not established merely on the fact that the complainant is a member of a Scheduled Caste or a Scheduled Tribe, unless there is an intention to humiliate such a member for the reason that he belongs to such community – In the present case, there is nothing in the transcript of the video in question to indicate even prime facie that the allegations were made by the appellant only on account of the fact that the complainant belongs to a Scheduled Caste – Allegations made by the appellant show that he is at inimical terms with the complainant and his intention may be to malign or defame him but not on the ground or for the reason that the complainant belongs to a Scheduled Caste – At best, the appellant could be said to have prima facie committed the offence of defamation punishable under Section 500, IPC for which the complainant can prosecute the appellant – A prima facie conjoint reading of the transcript of the video and the complaint does not disclose that the actions of the appellant were impelled by the caste identity of the complainant for which he could invoke the provisions of the 1989 Act – Further, even the offence under Section 3(1)(u) will come into play only when any person is trying to promote ill feeling or enmity against the members of the scheduled castes or scheduled tribes as a group and not as individuals – There is nothing to even prima facie indicate that the appellant by publishing the video on YouTube promoted or attempted to promote feelings of enmity, hatred or ill-will against the members of Scheduled Castes or Scheduled Tribes – The video had nothing to do in general with the members of Scheduled Caste or the Scheduled Tribe – Appellant’s target was just the complainant alone – Impugned order passed by the High Court declining to grant anticipatory bail to the appellant, set aside – If arrested, the appellant be released on bail on the terms and conditions, which the Investigating Officer may deem fit to impose. [Paras 58, 74, 77, 89] Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 s.3(1)(r) – Mere knowledge of the caste identity of the complainant, if sufficient to attract the offence under:

Held: No – Wherever the legislature intended that mere knowledge of the fact that the victim is a member of Scheduled Caste or Scheduled Tribe would be sufficient to constitute an offence under the 1989 Act, it has specified the same for instance, u/ss.3(1)(w) (i), (ii), (2)(v), (va) whereas, the words in Section 3(1)(r) of the 1989 Act are altogether different. [Para 79]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.3(1)(r) – “with intent to humiliate” – Meaning:

Held: Section 3(1)(r) should be seen in the context of Section 7(1)(d) of the Protection of Civil Rights Act, 1955 wherein any insult against a member of a Scheduled Caste or Scheduled Tribe on the ground of “untouchability” was punishable with imprisonment for a maximum term of six months – However, Civil Rights Act could not adequately tackle caste-based offences and the practice of “untouchability”, leading to the enactment of the 1989 Act introducing more stringent provisions for combating such practices – The words “with an intent to humiliate a member of a Scheduled Caste or Scheduled Tribe” are thus, inextricably linked to the caste identity of the person who is subjected to intentional insult or intimidation and are inseparable from the underlying idea of “untouchability” which is sought to be remedied and punished by the 1989 Act – Not every intentional insult or intimidation of a member of a SC/ST community will result into a feeling of caste- based humiliation – It is only in those cases where the intentional insult or intimidation takes place either due to the prevailing practice of untouchability or to reinforce the historically entrenched ideas like the superiority of the “upper castes” over the “lower castes/untouchables”, the notions of ‘purity’ and ‘pollution’, etc. that it could be said to be an insult or intimidation as envisaged by the 1989 Act – The expression “intent to humiliate” in Section 3(1)(r) must be construed in the larger context in which the concept of humiliation of the marginalised groups has been understood by various scholars – It is not ordinary insult or intimidation which would amount to ‘humiliation’ that is sought to be made punishable under the 1989 Act – Humiliations based on different grounds and identities existing in the society targeted in different legislations like the Protection of Women from Domestic Violence Act, 2005, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, discussed. [Paras 61, 72]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Cases where complaints/FIRs are based on YouTube videos, digital materials on social media platforms – Courts to look into said materials alongwith the complaint: Held: Courts should have the discretion to look into the materials based upon which the complaint has been registered, in addition to verifying the averments made in the complaint – If on a prima facie reading of the such materials referred to in the complaint and the complaint itself, the ingredients necessary for constituting the offence are not made out, then the bar of Section 18 would not be applicable. [Para 52]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Code of Criminal Procedure, 1973 – ss.438, 482 – Constitution of India – Article 226 – Cases of malicious prosecution due to political/private vendetta: Held: Such cases can be considered only by the High Court in exercise of its inherent powers under Section 482 of the Code or in exercise of its extraordinary jurisdiction under Article 226 of the Constitution – Powers under Section 438 of the CrPC cannot be exercised once the contents of the complaint/FIR disclose a prima facie case. [Para 49]

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – s.18 – “arrest of any person” – Significance – Code of Criminal Procedure, 1973 – ss.41, 60A: Held: s.18 bars anticipatory bail only in cases where a valid arrest of the accused person can be made as per Section 41 read with Section 60A of CrPC – An arrest cannot be made merely because it is lawful to do so – An arrest can be effected if there is a reasonable complaint, credible information or reasonable suspicion and the police officer has a reason to believe that such offence has been committed by the accused person and the arrest is necessary – The term ‘arrest’ appearing in the text of Section 18 is to be construed and understood in the larger context of the powers of police to effect an arrest and the restrictions imposed by the statute and the courts on the exercise of such power – Thus, the bar under Section 18 would apply only to those cases where prima facie materials exist pointing towards the commission of an offence under the 1989 Act because it is only when a prima facie case is made out that the pre-arrest requirements as stipulated under Section 41 of CrPC could be said to be satisfied. [Paras 41, 43, 44, 46]

Interpretation of Statutes – Penal Statutes – Strict interpretation – Principles of statutory interpretation: Held: A penal statute must receive strict construction – A principle of statutory interpretation embodies the policy of the law which is based on public policy – The court presumes, unless the contrary intention appears, that the legislator intended to conform to this legal policy – A principle of statutory interpretation is a principle of legal policy formulated as a guide to the legislative intention. [Para 82] Code of Criminal Procedure, 1973 – s.438 – Evolution of, purpose – Discussed.

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 – Words and phrases – “Humiliation” – Social context – Humiliations in different social structures – Works of various scholars – Discussed.