A bench comprising the Chief Justice observed that the SC/ST Act was not applicable in the criminal case filed by a ruling-front MLA.
Published Jul 11, 2023 | 2:13 AM ⚊ Updated Jul 11, 2023 | 7:55 AM
Shajan Skariah, editor of Marunadan Malayalee. (shajan.scaria.3/Facebook)
Efforts by the Pinarayi Vijayan government in Kerala to clip wings of the Malayalam news portal and YouTube channel Marunadan Malayalee by arresting its editor Shajan Skariah in a criminal case suffered a setback on Monday, 10 July.
A Supreme Court bench, comprising Chief Justice of India DY Chandrachud and Justice PS Narasimha, granted him interim protection from arrest, overriding strong objections raised by the state.
Skariah was charged under the Scheduled Caste and Scheduled Tribe (SC/ST) (Prevention of Atrocities) Act of 1989.
Allowing a special leave petition filed by Skariah challenging the Kerala High Court’s recent dismissal of his appeal against the rejection of anticipatory bail by a Special Court handling SC/ST Act cases, the Supreme Court bench also observed that the alleged derogatory remarks made by Skariah against CPI(M) MLA PV Sreenijan in a YouTube video would not come under the purview of the Act.
The court observation was a severe reprimand to the state government, which was accused of slapping false charges under the SC/ST Act against Skariah because of a vendetta against him by a set of senior ruling front leaders, including PV Anvar.
“Pending further orders, there shall be a stay of arrest,” ordered the bench while issuing notice on the special leave petition to the state government.
The FIR against Skariah was based on a complaint lodged by Sreenijan, against whom Skariah made some derogatory observations while telecasting a YouTube show on a corruption case allegedly involving the MLA.
“His statements may be defamatory, but these are not offences under the SC/ST Act. He may have said something against the father-in-law (of the complainant), judiciary, etc, which may be in bad taste,” the CJI was quoted as saying by Live Law.
Skariah has been evading arrest for the last 10 days, and moving the bail application in the Supreme Court.
Meanwhile, police raids at Skariah’s offices in Kochi and Thiruvananthapuram, apart from searches at the residences of the staff seeking the whereabouts of the editor, attracted wide criticism because of their perceived insensitivity.
The police seized several computers, mobile phones, and other equipment from the houses of the staff and the office.
This was an apparent bid to prevent the portal from being updated and more videos being uploaded on the YouTube channel.
Meanwhile, in a related development on Monday, the Kerala High Court pulled up the state’s Home Department for seizing the phone of a journalist working for Marunadan Malayalee.
He was taken into custody to track down the missing editor.
Hearing a petition filed by Vishakh, the journalist, who alleged police torture, Justice PV Kunhikrishnan of the Kerala High Court questioned the need for seizing his phone, especially when he was not an accused in the case.
The court also noted that journalists were the fourth pillar of democracy, and their fundamental rights should not be breached.
Marunadan Malayalee became a target of Kerala’s ruling CPI(M) after it tuned highly critical of some of the alleged wrongdoings of a section of the party’s leaders, including Anvar and Sreenijan.
When the Supreme Court took up the bail case, senior advocate V Giri appeared on behalf of Sreenijan.
He urged the bench to read the English transcript of the Malayalam video, having alleged derogatory content.
Saying that he had read the transcript, the Chief Justice said the content carried “no whisper of allegation under the SC/ST Act”.
He told Giri: “The complainant indeed belongs to a Scheduled Caste. Merely because your client is a member of an SC and he said something nasty to your client, this has no implications on the caste status at all.”
Giri countered the observation by referring to Section 3(1)(r) of the SC/ST Act, saying that whoever intentionally insulted or intimidated a member of the SC community in public view was an offender.
CJI replied to that with a hypothetical example. “Suppose a member of a Scheduled Caste has a contract with B. He does not return the money to B. B calls him a cheater. Does that amount to an offence under the provision?”
Giri said that it depended on whether the person intended to insult based on caste status, and it had to be gathered from the facts.
“On the face of the statement, is there anything remotely suggesting that he has humiliated on the ground that you belonged to a Scheduled Caste?” the chief justice asked.
Giri claimed that Skariah was a repeat offender who had made insulting statements against several dignified personalities.
“So should we be teaching him a lesson because we don’t approve of his statement, by sending him to jail? That is very harsh”, the Chief Justice observed.
Giri said Skariah used insulting statements against several political leaders cutting across party lines in Kerala, and termed him a “mafia don”, “black money dealer”, and “murderer”.
In his video, Giri also pointed out, Skariah identified Sreenijan as an MLA of Kunnathunadu, which has been a reserve constituency for SC for years.
“Such comments may be defamatory, but not SC/ST Act offences. We agree that these statements are in bad taste; we disapprove of his statement. But, in criminal law, you have to see the matter strictly because someone’s liberty is at stake,” the Chief Justice said.
After passing the order granting relief, the bench asked senior advocate Siddharth Luthra, Skariah’s lawyer, to advise him to be more restrained in his comments as a senior journalist.
He also said that he considered reading the transcript after seeing the strong order passed by the high court.
“The high court had written such a strong order. So I thought, let me go through the statement. Sometimes stronger the order is, you have to be more careful in looking into it,” he said.
As per the case registered by Kerala Police, Skaria telecast a news item regarding the alleged misdministration of a sports hostel in Kochi by Sreenijan in his capacity as the chairman of the District Sports Council.
The Special Judge for SC/ST (Prevention of Atrocities) Act, Honey M Varghese, found the allegations to be insulting and defamatory.
The court found that Skaria knew that the de facto complainant belonged to a Scheduled Caste community and that the publication of the news item containing derogatory comments through his YouTube channel was sufficient to attract the offence alleged under the SC/ST (Prevention of Atrocities) Act of 1989.
The Kerala High Court dismissed his appeal. The single judge bench of Justice VG Arun observed while passing the order: “It is pertinent to note that the allegations levelled against the second respondent include murder and contain insinuation against the second respondent’s father-in-law, aspersions on unnamed judicial officers, and bestows the title ‘Mafia Don’ on the second respondent.”
It added: “As such, it can unhesitatingly be held that the video contains insults intended to humiliate the second respondent (MLA Sreenijan) in public view.”
The court also wondered whether journalism had become “defame, denigrate, damnify, and destroy”.
