The Kerala High Court has raised serious concerns over the absence of specific laws to effectively address cyberbullying and online harassment. The court remarked that the current legal framework inadequately tackles cases where individuals face abusive or derogatory content online.
Despite the enactment of the Bharatiya Nyaya Sanhita (BNS) 2023, the court observed that there are no direct provisions to combat cyberbullying, especially when it does not involve sexual overtones.
"It is of grave concern that, in this digital age, there is a lack of comprehensive and effective legislation to combat such misconduct, which necessitates the urgent attention of the authorities concerned... However, there remains a conspicuous absence of legal provisions that directly address the issue of cyberbullying or online harassment, particularly those incidents devoid of any sexual context." — Justice C.S. Sudha
The court emphasized that the gap in the legal framework needs immediate rectification to ensure all forms of cyberbullying are adequately addressed.
The court was hearing an appeal from an accused who had been denied anticipatory bail by the Sessions Court. The accused was charged under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, the Information Technology (IT) Act, and the Indian Penal Code (IPC).
The prosecution alleged that the accused downloaded a video from True T.V, featuring the complainant as a person arrested for immoral activities. The accused allegedly edited the video to include an interview with the complainant's husband and uploaded it on his YouTube channel, Visal Media.
The uploaded video contained allegations against the complainant, claiming she had left her husband and was involved in immoral activities with multiple men. Additionally, it labeled her as a drug addict and a sex racket member, displaying her in a room with another man.
Legal Charges Against the Accused
The accused faced multiple charges, including:
- IPC: Section 354A(1)(iii) (showing pornography against a woman's will), Section 354A(1)(iv) (making sexually colored remarks), Section 509 (insulting the modesty of a woman)
- IT Act: Section 66E (punishment for violating privacy), Section 67A (punishment for publishing or transmitting sexually explicit content online)
- SC/ST Act: Sections 3(1)(r), 3(1)(s), 3(1)(w)(ii), and 3(2)(va)
Defense Arguments
The accused argued that his actions did not constitute an offense under the SC/ST Act since he did not mention the complainant’s caste. He cited the Hitesh Varma v. State of Uttarakhand (2020) ruling, where the Supreme Court held that an insult does not qualify as an SC/ST Act offense unless it is based on caste identity.
The defense also contended that the provisions barring anticipatory bail under Sections 18 and 18A of the SC/ST Act should not apply in this case.
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Court’s Observations and Verdict
After reviewing the video, the court held that the content was derogatory and constituted online harassment.
"The content of the video in question is indisputably derogatory and constitutes a clear instance of online harassment and abuse directed at the 2nd respondent."
The court expressed concern over the increasing cases of cyberbullying, stating that many individuals believe they can evade accountability while making abusive online remarks.
"In this era of social media, individuals operate under the misconception that the right to freedom of speech and expression allows them to produce any form of content, make unfounded criticisms, issue abusive remarks or engage in derogatory conduct towards others, all while evading accountability. This raises serious concerns, particularly in the light of the growing prevalence of cyberbullying, a phenomenon that remains inadequately addressed by current legal frameworks."
The court further noted that while Indian Penal Code provisions on stalking and voyeurism exist, there is no direct law addressing cyberbullying in India. Additionally, the IT Act does not define or regulate cyberbullying, creating a significant legal gap.
While reviewing the video, the court noted that the accused advised on marital relationships and criticized the complainant’s actions. However, it was skeptical about the applicability of Section 67A of the IT Act, stating that it applies only when sexually explicit acts or conduct are published.
Regarding Section 3(1)(r) of the SC/ST Act, the court ruled that an offense was made out since the video depicted the complainant as a woman of loose morals and was viewed by over 1 lakh people.
The court concluded that the bar under Section 18 of the SC/ST Act would not apply, as the video’s content was clearly insulting to the victim.
Consequently, the court dismissed the petition for anticipatory bail.
Counsel for the Appellants: Advocates K. Aboobacker Sidheeque, Muhammed Ibrahim Abdul Samad, Subin K. Sudheer
Counsel for the Respondents: Advocates K. Nandini, Vipin Narayan (Senior Public Prosecutor)
Case No: Crl.A 842 of 2024
Case Title: Fakrudeen K. V. @ Fakrudheen Panthavoor v State of Kerala and Another
