SC’s Approach to Mamata Meme Case Endangers Freedom of Speech

By mandating an apology by Priyanka Sharma, the court order goes against fundamental rights and the rule of law.

West Bengal Chief Minister Mamata Banerjee (L), Justice Sanjiv Khanna (C) and Justice Indira Banerjee (R).

(Photo: Kamran Akhter/The Quint)

Should people be sent to jail for sharing memes about political leaders on social media?

This should have been a relatively simple question for the Supreme Court to answer, but for some reason, obvious courses of action are proving rather elusive for the highest court in the land these days.

And so an uncomplicated request for bail by a young woman who’s been in jail for four days for the ‘crime’ of sharing a meme about West Bengal Chief Minister Mamata Banerjee, has turned into a complicated debate on free speech and whether someone should be required to apologise for a supposedly offensive statement – even if the statement hasn’t been proved to be illegal.

The way in which we got to this point is extremely disturbing, and could set a dangerous precedent when it comes to how infringements of freedom of expression in this country are handled by the courts.

Why? Think about what exactly happened here.

Priyanka Sharma, a BJP youth wing (BJYM) leader in West Bengal, shared a meme on Facebook in which Mamata Banerjee’s face had been superimposed with Priyanka Chopra’s from the latter’s photos at the recent Met Gala. The image wasn’t exactly in the greatest of taste, but it was neither a sexually explicit image, nor was there any derogatory text on the meme.

A local TMC leader took offence at what she had done (even though she had not even created the image, and was just one of many who had shared it online) and filed a criminal complaint against Sharma. She was then booked under Section 500 of the Indian Penal Code (defamation) as well as Section 67A (publishing obscene images) and Section 66A (offensive messages) of the Information Technology Act, and remanded to 14 days custody.

This whole exercise reeks of bad faith, and an attempt to send a message to those opposing Mamata Banerjee and her party. The complaint was filed by a random third party, not the person who was allegedly defamed, and Section 66A of the IT Act was dragged in even though it was struck down by the Supreme Court four years ago in the Shreya Singhal case.

Too caught up to read the full story? Listen to it here instead:

Not-so-Great Expectations

Now look, nobody is asking the Supreme Court to play interventionist in this issue and quash this unwarranted FIR, even though it would be nice to see the courts take a no-nonsense stand on these kind of frivolous complaints which are clearly meant to curtail the fundamental right to freedom of expression.

All that needed to happen here was for the court to see if there was any requirement for custody in this case (there wasn’t, by the way) and on that basis decide whether to grant Sharma bail or not. That’s it. This would neither have prejudiced the criminal case by the police nor any attempt by Sharma to get the case quashed, and the judges could have gone home having done their bit for due process and the rule of law.

Instead, the vacation bench of Justices Indira Banerjee and Sanjiv Khanna left everyone in the courtroom flabbergasted when they said the BJP youth leader needed to apologise to the chief minister. Justice Banerjee was not amused by the meme, and so said that even though they were going to grant Sharma bail, she also had to apologise for the post.

Cue understandable confusion as everyone tried to understand what was going on. Had the court already decided Sharma had done something wrong, without a trial? Was a meme not covered by the fundamental right to freedom of speech in Article 19(1)(a) of the Constitution?

Justice Khanna tried to explain what was happening by saying the apology was separate from the legal issues in the case, that this wasn’t a condition for her getting bail but she should still do it for the offence caused to Mamata Banerjee:

“This is not about what is legally wrong. But she is a leader of a contesting political party. Had she been a citizen, there would have been no problem.”

Huh?

What on earth is that supposed to mean? Do people lose their right to free speech if they join a political party? Is there a new restriction on free speech under Article 19(2) that says you need to apologise for statements that offend a political opponent, even if there is no finding that the statements are illegal?

Senior advocate Neeraj Kishan Kaul, arguing on behalf of Sharma, justifiably took exception to this. He pointed out that such a direction would have a chilling effect on free speech, and that an apology can’t be demanded just because someone didn’t appreciate the humour in a political satire. “So tomorrow,” he protested, “anyone can be arrested for sharing a meme and be forced to apologise for bail?”

Kaul offered to take instructions from Sharma and provide detailed arguments on how forcing her to make an apology (even if this wasn’t a condition for her bail) would be a violation of her fundamental rights.

In a Kafka-esque twist, the judges then decided to make Sharma’s release on bail conditional on her tendering a written apology immediately after being released, to the consternation of her lawyers and everyone in the courtroom, for that matter. Even the lawyer for the government of West Bengal seemed surprised by this development, and with good reason.

Conditions for grant of bail are supposed to ensure the accused person doesn’t run away, or tamper with evidence, or threaten witnesses. They are not supposed to amount to pre-judging a case, as an apology here certainly would have. How had the judges decided the post was offensive enough to require an apology? If it was not about what was legally wrong, as Justice Khanna had said, how could an apology be made a legal requirement for getting bail?

Justice Banerjee’s statement that freedom of speech cannot encroach on the rights of others was irrelevant at this stage. Such a position could maybe justify saying that the post by Sharma should be taken down while the case goes on – which Sharma had already done. A reasonable restriction a la Article 19(2).

An apology, however, would be something else entirely, an acknowledgement that Sharma had in fact done something offensive regardless of what happened in the eventual case. This would certainly not be a reasonable restriction, and there was no legal basis to make this a condition for grant of bail.

Making Matters Worse

You would think this was sufficient controversy for the day, but within minutes of passing this order, the judges called the lawyers for the parties back and clarified that the apology was not in fact a condition for granting bail.

Somehow, this actually makes things worse. If there is no basis for the apology to be made a condition for bail, there is even less of a basis for mandating an apology without making it a condition for bail!

Sure, the court has all sorts of powers to do complete justice and what have you, but how is it justice to order someone to apologise for a comment which hasn’t been declared illegal by law?

What’s the standard being followed here, to make an apology necessary? Is it Justice Banerjee’s obvious distaste for the image? Is it the degree of offence taken by the TMC?

We know absolutely nothing about any of this, not least because the judges clarified that this order has only been made “in the special facts and circumstances of this case”, and the questions of law on free speech are being kept open for hearing by the court after the end of its vacations.

The written order of the court doesn’t make any of this any clearer. All it says about the apology is that the “detenue shall, however, at the time of release, tender an apology in writing for putting up/sharing the pictures complained of on her Facebook account.”

Extra-Legal Considerations in a Court of Law?

What makes this whole situation so worrisome is not just that an apology is being demanded by the Supreme Court here without any such request coming from the supposedly offended party, Mamata Banerjee, but that the court has allowed itself to conflate legal issues with non-legal issues – as Justice Khanna himself admitted.

This unjustified and extremely concerning conflation of issues was something we recently saw in a widely-criticised decision of the Punjab & Haryana High Court, regarding Twitter comments by Vishal Dadlani and Tehseen Poonawalla about Jain saint Tarun Sagar.

The judge found that no criminal offence was made out, but still, somehow, ordered the two of them to pay Rs 10 lakh each as compensation to Sagar, for hurting the sentiments of the Jain community, and so that they don’t mock the head of a religious sect in future just to gain publicity.

There was no basis in law for this order whatsoever, and it was widely expected to be overturned on appeal, whether in the high court or the Supreme Court. After today’s hearing by the vacation bench, however, one cannot be so sure.

How can one, after all, when those who are meant to safeguard the rule of law, be willing to allow extra-legal considerations to affect their legal decision-making? Because that’s exactly what this order on the Mamata meme row is an example of.

It ignores basic dicta on freedom of speech, and how only reasonable restrictions on this can be permitted. It ignores the fundamental rule of judicial decision-making, that a judicial order must be justifiable on form and substance. And it creates an entirely new jurisprudence on treating such cases differently from precedent just because the judges want to do so.

This is not exactly an approach which will inspire much confidence in the general population, that their fundamental rights are going to be protected.

If that weren’t bad enough, by the way, we’re just learning that the relevant police cyber cell in Kolkata has submitted a closure report to the magistrate, asking to close the case against Priyanka Sharma.

So basically, the court passed an unjustified order to make a person apologise for a post that won’t even be the subject of a criminal trial or investigation.

Oh dear.

You can read the full order below: