New Delhi: Any offensive post on social media targeting an individual of the Dalit or Tribal community, even if made in a closed group, is punishable, the Delhi High Court has said.
In an important ruling that plugs the gap between online abusers and their prosecution, the court made it clear on July 3 that Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989, will apply if a casteist slur is made against a person from these communities.
Though the judgment came in reference to a Facebook “Wall”, the ruling can extend to other social media outlets such as WhatsApp which have closed privacy settings.
“When a member registered with Facebook changes the privacy settings to ‘public’ from ‘private’, it makes his/her writings on the ‘wall’ accessible not only to the other members who are befriended by the author of the writings on the “wall”, but also by any other member registered with Facebook. However, even if privacy settings are retained by a Facebook member as “private”, making of an offending post by the member – which falls foul of Section under Section 3(1)(x) of the SC/ST Act—may still be punishable,” Justice Vipin Sanghi noted.
The court also clarified that only exception from prosecution in these cases would be if the complainant and those connected to him/her on Facebook are related to each other. Justice Sanghi pointed out that “public view” means “a place where public persons are present – howsoever small in number they may be.”
The court also brought out the finer legal nuance and added “it would make no difference whether the privacy settings are set by the author of the offending post to “private” or “public” as sections of SC/ST Act do not require that the intentional insult or intimidation with intention to humiliate a member of the SC or ST should take place in the presence of the said member. Even if the victim is not present, and behind his/her back the offending insult or intimidation with intention to humiliate him/her – who is a member of the SC or a ST takes place, the same would be culpable if it takes place within public view”.
In her defense, the Rajput woman maintained that her Facebook posts, even if assumed to be true, have been posted on her own Facebook wall and do not disclose intentional insult or humiliation against any individual.
The accused also argued that in her posts she never took the name of her co-sister who has no basis to be offended since the posts were directed against the females of the ‘Dhobi’ community in general, and not against any specific individual. Lastly, she also defended her action by arguing that her Facebook wall is a private space and no one has a right to barge into it by stealth only to feel offended, The Times of India reported.
Appearing for the prosecution, additional standing counsel Nandita Rao, however, told the court that offence under the SC/ST Act is made out, as the Rajput woman had knowingly posted on Facebook to insult her dalit co-sister.
Justice Sanghi granted relief and quashed the FIR by agreeing that generalized statements against all and sundry, and not against specific individual belonging to the scheduled caste or scheduled tribe, would not make out an offence. But it rejected the second limb of her argument that a Facebook wall cannot be described as a place within public view.