The Supreme Court today reserved judgment in the Special Leave Petition (SLP) filed by Shajan Skariah, editor and publisher of Kerala-based Marunadan Malayali challenging the order of the Kerala High Court which rejected his anticipatory bail application in FIR for humiliating and making false allegations and accusations against CPIM MLA PV Sreenijin through a news video uploaded on YouTube.

The State of Kerala today opposed the plea for anticipatory bail and justified the invocation of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 against the journalist for video against the MLA by arguing that the MLA is per se vulnerable and was targeted by the journalist because of the same.

An FIR was registered against Shajan Skariah on a complaint by PV Sreenijin, who is an MLA of the ruling party and the son-in-law of the former Chief Justice of India, K. G. Balakrishnan. The Kerala Police had invoked offences under the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (the Act) for a news video allegedly making false allegations and accusations against the MLA and his father-in-law. The Trial Court and the High Court had both denied him anticipatory bail. However, the Apex Court in July 2023 had stayed his arrest in the case.

The Bench of Justice JB Pardiwala and Justice Manoj Misra said, "We are reserving the Order."

Senior Advocate Siddharth Luthra appeared for Skariah, Senior Advocate PV Dinesh appeared for the state of Kerala and Advocate Harees Beeran appeared for the MLA.

Luthra argued that a case under the SC/ST Act was not made out, and moreover, provisions relating to defamation have not been invoked against the journalist. He submitted that there is no reference to the caste of the MLA anywhere in the video made by the accused. "Can they by inference claim that it is a case under Section 3(1)(r) and (u)", he submitted.

The Court asked whether publishing a video will fall under "in any place under public view", as provided under Section 3. Luthra answered in the negative. He submitted that there is, if at all, defamation and not humiliation linked to caste.

On the contrary, Dinesh argued that Skariah was misusing his privilege of being a journalist and that mention of the cast of the victim is not necessary for the offence. "He claims to be a journalist. He has got a YouTube channel with 29 lakh viewers and he has got a Facebook page, he has got an Instagram page and he fixes agenda in Kerala, the way he has viewership in Kerala. This channel is not catering to the intelligentsia of Kerala... Most of the articles are like husband.. wife.. so and so.. and these sort of sleazy items", Dinesh told the Court.

"Using privilege as a journalist he is publishing a news item. It can be right, it can be wrong. If he is wrong, he should face the consequences under the defamation law, it happens sometimes, it is an occupational hazard...When he is making a journalistic post, a post claiming to be an article knowing fully well..... He hasn't made any such averments, any hit job, against any other MLA in the State."

"Because this person (PV Sreenijin) is vulnerable, he doesn't have a caste backing; he doesn't have any other backing, because he is vulnerable per se...... The entire allegations are wrong," he argued. Dinesh argued that a prima facie case is made out and the ingredients to constitute the offence under Sections 3(1)r) and 3(1) (u) of the Act were made out. He further argued, "There is an animus against him (MLA) just because he is vulnerable".

"People are vulnerable. I don't have a media with 2.9 million viewers", he submitted on behalf of the MLA.

He submitted that the journalist has not claimed before the Court that his statements were right or that he believed them to be right. Taking note of the submissions, the Court reserved verdict in the Appeal.

Last year, Chief Justice DY Chandrachud, while staying the arrest of Shajan Skaria had said that the Kerala High Court's order refusing him anticipatory bail was a strong order and that the stronger the order, the more one feels it should be looked into more carefully.

Justice VG Arun of the Kerala High Court, in an order of June 30, 2023, denying anticipatory bail, had held that "At this stage, the court can only go by the allegations in the complaint and the attendant circumstances. The allegation is specific to the effect that the appellant has been insulting and humiliating the second respondent only for the reason that he belongs to the Scheduled Caste. The attendant circumstances are the wanton nature of the allegations and the repeated news items published against the second respondent."

The Kerala High Court also noted that allegations levelled against the MLA include murder and contains insinuation against his father-in-law and bestows the title 'Mafia Don' on him. The Court said that as such, it can unhesitatingly be held that the video contains insults, which are intended to humiliate the MLA in public view.

The Court had in the impugned order observed that the four W's of journalism that used to guide journalists in their reporting and helped in ensuring the accuracy and completeness of news stories are: "'Who, What, When and Where' while the videos like the one under consideration make one wonder whether the W's have been replaced with D's; 'Defame, Denigrate, Damnify and Destroy'".

The MLA Sreenijin, had submitted the complaint, that he is being singled out by the appellant for the reason of being a Scheduled Caste member. Shajan was then booked under the offences punishable under Sections 3(1)(r) and 3(1)(u) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.

Cause Title: Shajan Skaria v. The State of Kerala [SLP (Crl) No. 8081/2023]