Casteist Slurs on Social Media

Context

The Calcutta High Court has ruled that the requirement of “public view” in the SC/ST (Prevention of Atrocities) Act, 1989 may also cover the digital space, which would include cases of caste-based abuse on social media.

What Does the SC/ST Act Say?

• Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 aims to prevent atrocities, humiliation, and discrimination against the members of the Scheduled Castes and Scheduled Tribes.
• These refer to specific cases of insult and abuse in Section 3(1)(r) and 3(1)(s). Broadly:
  • Section 3(1)(r) will include insult or intimidation of an SC/ST member with the intention to humiliate in any place where it is visible to others.
  • The third one is that the caste name of an SC/ST member is abused in any place in the presence of the public.
• So, a statement that is based on a caste may not be regarded as an offence on its own. The statutory ingredients, such as the purpose of the action and the need for it to be demonstrated publicly, have to be considered.

What is ‘Public View’?

• Supreme Court has in the past differentiated public place from place within public view.
• In Swaran Singh vs. State (2008) and later in Hitesh Verma vs. State of Uttarakhand (2020), this Court has explained that even a private place could be considered to be in the public domain if members of the public are able to witness or hear the alleged activity. On the other hand, if something happens in a public building, that doesn’t necessarily meet the requirement.
• The real issue is whether the alleged insult or abuse was in fact capable of being seen by the public in the circumstances of the case.

What did the Calcutta High Court Decide?

• The matter being heard by the Calcutta High Court was a complaint of abuse and casteist content being uploaded by the complainant on Facebook, which targeted his caste, religion, and family.
• Screenshots and digital links were obtained, and statements were taken during the investigation. Later, however, the police filed a “Final Report True, No Clue”, claiming that it was not possible to obtain the user information from Facebook with the help of the cyber police.
• The lower court accepted the closure report. The complainant challenged this decision.
• The order was quashed by the High Court, and the case remanded for further investigation. It believed that the notion of “public view” can cross from the real to the virtual world.
• The Court also noted that the failure of a local cyber investigation to gain access to user information from the social media service provider would not, on its own, be sufficient to lead the investigation to be closed, as digital evidence had already been gathered.
• It has ordered the police to explore cyber-forensic means of investigation, such as examining digital footprints, etc.

Why Is the Ruling Significant?

• Expanding the Meaning of Public View

  • There are no clear parallels between social-media sites and their on-the-ground counterpart. Many persons can view, share, and circulate a post without the accused and the victim being physically present together.
  • The decision acknowledges the technological change and extends an existing statutory obligation from one method of communication to another.

• Digital Evidence Becomes Important

  • Screenshots or URLs, account information, metadata, IP logs and platform records can be relevant to the issue of who posted what and what was posted.
  • The judgment thus emphasizes the increasing relevance of cyber-forensics in criminal investigations concerning social media.

• Police Investigation Cannot End at Platform Non-Cooperation

  • The Court’s ruling suggests that investigators might have to look at more specialized technical mechanisms if they are unable to obtain information from a social-media intermediary from an initial effort.
  • This has far-reaching implications for the investigation of cyber offences in which evidence is stored online and on digital platforms, many of which are abroad, are of critical importance.

What Have Other Courts Said?

• The overall judicial trend is that not all caste-based insults will invoke the SC/ST Act.
• Supreme Court jurisprudence will require the courts to consider the meaning of the words, circumstances, intent, and whether the statutory duty to be in public view is met.
• Recent decisions have confirmed that a general insult or simply the mention of someone’s caste would not be enough in the absence of the required elements of the offence.
• The Kerala High Court had, earlier, also discussed the concept of public view in the context of the digital era, stating that the concept of statutory interpretation may have to incorporate technological changes.
• Therefore, the Calcutta HC decision should not be interpreted to mean that all offensive comments on social media are an offence under the SC/ST Act. The statutory requirements continue to be core.

Challenges in Applying the Law Online

• Closed groups: The public view of content in a private group may change depending on the situation and levels of access.
• One-to-one communication (private messages): This communication is private message, which poses other questions than a public message.
• It’s technically hard to find the true identity of the person behind an account (anonymous accounts).
• Digital Evidence: Screenshots can need authentication and corroboration.
• Cross-border platforms: Cooperation of companies across borders may be needed for investigations.
• Protection of free speech issues: Enforcement should be able to distinguish between protected expression and conduct that is allowed under the statutory elements of a criminal offence.

Way Ahead

• Indian police need more cyber-forensic capability in their ranks to respond to the incidence of online abuse, including caste-based abuse.
• Specialised units should have the capacity to store digital evidence, monitor online activities and facilitate the cooperation of platforms via formal channels.
• Equally, the SC/ST Act has to be applied with care, taking into account the intent, targeting based on caste, and the content and context of the communications by the investigators and the courts.
• Having clear procedures for the preservation and authentication of electronic evidence can also enhance investigations.

Source: The Indian Express

Mains PYQ

(Q) “Caste system is assuming new identities and associational forms. Hence, caste system cannot be eradicated in India.” Comment. (2018)

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