In a nutshell: Kerala High Court, in the case of Majeesh K Matthew. vs State of Kerala and Ors decided on 20th June, 2018, rejected the Bail application of accused for posting comments in their Facebook pages making scurrilous comments against the complainant along with pictures of her with her husband making her the subject of online sexual harassment
The Applicant was a General Secretary of the youth wing of Democratic Kerala Congress. The Complainant, who filed a Complaint against him, is a social activist, wife of a sitting member of the Parliament and the author of a published book in which she had levelled certain allegations against a certain young political leader.
In her Complaint, the Complainant alleged that the Applicant, along with other people, had posted several comments on his Facebook pages making scurrilous comments against her. Several pictures of the Complainant and her husband had also been posted, making her the subject of online sexual harassment. This behavior, the Complainant alleged, displayed the Applicant’s hostile attitude towards her. The Applicant had tagged her in these posts, shared them and liked and shared the posts of other users posting similar content on Facebook. The Complainant alleged that this was done with an intent to put forth a libellous message online which she found to be inappropriate, offensive and peppered with obscenity. In one of the posts, the Complainant alleged, the Applicant had posted that the wife of a politician, who is also a Member of Parliament, used to rape him for about 16 years commencing from his days in college as a student. She said, this was referring to her.
The Counsel for the Applicant claimed that while he had, in fact, made the posts in question which had eventually garnered ample media attention and was subject to plenty of discussion online, he had no intention to denigrate the Complainant or to tarnish her image. He contended that, therefore, he was not liable to be prosecuted under section 67A of the IT Act.
“Section 67A – Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form
Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which mayextend to seven years and also with fine which may extend to ten lakh rupees.”
In response, the Public Prosecutor, representing the state, submitted that the investigation conducted until the date of hearing clearly showed that the Applicant along with his associates had, in an organised manner, systematically targeted the Complainant and vilified her online in a most despicable manner. He submitted that the investigation was in its early stages and it was too early to conclude that the offences alleged will not be attracted. He urged that the Applicant is a person who occupies a responsible position, it was not expected from him to revile a woman online. He claimed that the posts would show that it was gender-based harassment of the Complainant by persons wielding power with a view to subjugate her. According to the Public Prosecutor, the intention was to embarrass, humiliate and denigrate the Complainant.
The Counsel of the Complainant submitted that Complainant was subjected to gender-based bullying. The intent of the Applicant was to denigrate the Applicant on the basis of her sexuality. He claimed that the abuse was structured and done in an organised manner and is characterised by sexist vitriol. The perpetrators were all men and that they were members of a rival political party. He submitted that by using their clout, they have targeted the Complainant and power of social media has been ruthlessly used to subject her to gross online sexual harassment. He submitted that unless a very stringent view was taken, the Applicant would continue to indulge in these reprehensible acts. The Counsel for Complainant pointed out that, immediately after dismissal of application for anticipatory bail by the Court of Session, the Applicant had taken to his Facebook page and had threatened the Complainant that the cyber wing (of the political party that the Applicant belonged to) would continue to target her even if he was to be put in jail.
With respect to the arguments made about whether the content posted was to be considered to be of sexually explicit nature or not, the Court observed that –
“It is evident that there has been a concerted effort to target the complainant herein for having made some references about a young leader in her book. The posts that the Accused (including the Applicant) have posted have been in public domain for quite some time. It is futile to contend that their group is private, as the Applicant, even according to him, is a prominent politician. He himself claims that he is the State General Secretary of the youth wing of the Democratic Kerala Congress. He was expected to act responsibly and desist from abusing women or for that matter anyone else. The messages which have either been liked, tagged or posted by the Applicant have overtones of the subject raping young men, immorality, masturbation and promiscuous sexual behavior. The photographs of the complainant, her husband etc. are also peppered in those pages. There cannot be any doubt that the target is the complainant and none else. The Applicant had no business to throw muck and abuse at a woman online. After going through the posts which were made available, I am inclined to hold that the complainant has been subjected to gross online sexual harassment.”
The Court also said that “The method adopted by the Applicant and others clearly fall within what is called in these ages as cyber bullying, cybersexism or cyber misogyny. There is evidently discriminatory and abusive behavior towards the complainant apparently due to her political leanings. In the virtual world of social media, people feel that they are free to send insulting or abusive messages to others. Though the strength of social media has always been to easily connect and interact with friends and groups, it can also be subjected to gross abuse. The freedom that social media offers cannot be exploited to do online baiting such as in the instant case wherein the complainant is branded as being sexually promiscuous. Prima facie, there are materials to conclude that the Applicant has posted messages tinged with sexism with a view to embarrass and humiliate the lady.”
With respect to Applicant’s request for Anticipatory Bail, the Court held that “After evaluating the entire materials, I am not persuaded to exercise the discretionary powers of this Court and arm the Applicant with an order of pre-arrest bail.” Essentially, the Court observed that, given the facts and circumstances of the instant case, the Court was not inclined to grant the Applicant his prayer of anticipatory bail.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work & Adv. Vatsal Chorera – Legal & Compliance, POSH at Work