Recent order (May 14, 2019) of the Supreme Court in the case of Priyanka Sharma who had shared a meme of West Bengal Chief Minister Mamata Banerjee (a photoshopped picture of Mamata Banerjee), on her Facebook account, is incorrect from various angles.
This order asked Priyanka Sharma to tender an apology in writing for this meme, while granting her bail. Here is a relevant extract from this order (read it online):
“The detenue, Priyanka Sharma, is directed to be immediately released on bail. The detenue shall, however, at the time of release, tender an apology in writing for putting up/sharing the pictures complained of on her Face Book Account.”
Firstly, let me discuss the issue of fundamental right to freedom of speech and expression. Article 19(1) of the Constitution guarantees it, though there can be some reasonable restrictions on the exercise of this right, as laid down in Article 19(2).
Well, let me first refer to the emergency period during the 1970’s, when the then Prime Minister Indira Gandhi had completely curtailed freedom of speech and expression by censorship of media (at that time, mostly print media). A large number of opposition leaders had been detained under the preventive detention laws.
Now, look at the following cartoon by Abu Abraham that came to be published during the emergency period.
This cartoon showed a nude President of India (Fakhruddin Ali Ahmad), in a bathtub and signing an Ordinance to be promulgated by Indira Gandhi government. It had a caption: “If there are any more ordinances, just ask them to wait.”
It appeared to say: [Oh! Please!! Let me take my bath at least!!!]
So, even during the emergency, a cartoon of the then President of India could be shown with his nude body in a bath tub; and, moreover, openly criticizing the way Ordinances were signed so lightly, i.e., the President was not given time even to come out of his bathtub!!! How could the President be allowed to read the Ordinance before signing it?
That was sometime in the 1970’s. The emergency period.
Now, we are in 2019. There is no emergency, during which fundamental rights could be curtailed.
And, yet, a political meme of a chief minister cannot be allowed in 2019.
So, has it not been a downward journey for the fundamental right to freedom of speech and expression? Isn’t the Supreme Court, at least partly, responsible for it?
After all, what is a meme?
A meme, in modern times, is basically a cartoon. But instead of being hand-drawn, it is now photoshopped using some software. If a cartoon of a public figure (such as a CM) can be permitted, what is wrong with meme? After all, the purpose is the same. It is just like political criticism in the form of an image, rather than in words, or may be a political satire, or may be to make joke of a politician, etc.
If a cartoon ridiculing the President of India (in fact, it also ridiculed then then Prime Minister too for forcing the President to sign while being in bathtub) could be permitted even during the emergency period, how could a meme ridiculing the CM of a state become a crime in 2019?
Has Article 19 been curtailed further during this period?
Okay. Agreed that the meme showing the photoshopped image of Mamata Banerjee might perhaps have been in bad taste. But, then, look at how political leaders ridicule and abuse one another? “Neech Aadmi”. “Chor”. “Maut ka saudagar”. “Pappu”. And what not.
So, was this meme worse than these abuses that have been hurled by politicians at one another?
If you are a political leader occupying a high position in public life, then you must be willing to be ridiculed sometimes. For your bad decisions. For your controversial decisions. For your corruption. For your inefficiency. And, for many similar things. It is a professional hazard. Otherwise, don’t join public life.
In fact, the definition of “defamation” in Section 499 of the Indian Penal Code (IPC) itself provides certain exceptions in respect of certain acts (such as publication) relating to certain types of conduct of public figures, or conduct of a person relating to a public question, etc.
So, my lords, isn’t asking Priyanka Sharma to tender an apology for such meme, while granting her bail, an unreasonable restriction on the right to freedom of speech and expression?
Secondly, let me now come to the second issue. Maintainability of the offences registered against Priyanka Sharma.
It has been reported in media that Priyanka Sharma was alleged by police to have committed offences under Section 500 (defamation) of IPC, and Sections 66A (offensive content) and 67A (distributing sexually explicit material) of the Information and Technology Act (IT Act).
Now, let me point out that in the case of Shreya Singhal v. Union of India, (2015) 5 SCC 1 : AIR 2015 SC 1523, the Supreme Court in the year 2015, declared Section 66A of the IT Act to be unconstitutional. So, how can this section be applied against Priyanka Sharma? It was absolutely illegal on the part of the police to have applied this section against her.
What about offence under Section 67A of the IT Act?
Well, this section is reproduced below:
“67-A. 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 may extend to seven years and also with fine which may extend to ten lakh rupees.”
Now, anyone who has seen the meme shared by Priyanka Sharma would agree that the meme was not relating to any “sexually explicit act or conduct” or pornography. On Internet, you can get hundred times worse pictures and videos (including photoshopped images / videos of celebrities) which are of pornographic character. Nothing happens to them. Police remains silent and takes no action. Despite Supreme Court banning many porn sites, they are easily available online. Police does not do much against them.
But, this meme, which is not a sexually explicit matter, attracted Section 67-A of the IT Act!!! So, what can you say about the intellectual or moral integrity of police officers?
The fact, thus, remains that Section 67-A of the IT Act was also not attracted in this case. It is also an abuse of the law by police. To show their loyalty to the CM of the state.
Well, we are now left with only one section, i.e., Section 500 of IPC which relates to defamation. I have already mentioned above that the definition of “defamation” in Section 499 of the Indian Penal Code (IPC) itself provides certain exceptions in respect of certain acts (such as publications) relating to conduct of public figures, or conduct of a person relating to a public question, etc. So, I genuinely believe that the meme shared by Priyanka Sharma is not an offence of defamation, i.e., it does not attract offence under Section 500 of IPC.
But, for the sake of an argument, let me presume that offence under Section 500 IPC is made out in this incident. But, then, it is only a non-cognizable offence, in which FIR cannot be registered by police without orders from the magistrate. Arrest could not have been made without orders from the magistrate. A private complaint needs to be filed directly with the court if a defamation case is alleged. Moreover, the maximum punishment for the offence under Section 500 IPC is imprisonment for 2 years only. It is a bailable offence, in which bail is a matter of right under Section 436 of the Criminal Procedure Code. So, why was Priyanka Sharma detained in such offence for a few days? Why FIR was registered? Wasn’t it a failure of law? Why she had to approach the apex court of the nation for such silly offence (if at all this was an offence)?
Now, in these facts, the Supreme Court should have simply granted bail to Priyanka Sharma. It was a bailable offence, and a non-cognizable offence, for that matter. Where was the need to impose the condition of tendering an apology for sharing the meme?
It is pertinent to point out that subsequent to the Supreme Court order, as per media reports, the police in West Bengal has itself submitted a closure report in this case, giving the reason of “mistake of fact”. This further substantiates the fact that no offence is made out in this case.
Thirdly, presuming that the Supreme Court considered this case to be a serious offence, even then, it could not have pre-judged the case. At the time of granting bail, what is to be seen is whether it is a fit case to release the person on bail. Nothing more. Nothing less. The court is not required to, and not supposed to, comment on merits of the case (or pass a verdict on the merits of the case) except for the limited purpose of deciding whether it is a fit case for granting bail. In fact, in certain cases, even where merits of the case are discussed by courts, generally it is made clear that opinion on merits of the case shall not influence the final decision in the case since such opinion on merits was given only to decide the question of bail.
But, in this case, the Supreme Court asked Priyanka Sharma to “tender an apology in writing for putting up/sharing the pictures complained of on her Face Book Account”.
Isn’t it like deciding the case on merits? Does it not show that the Supreme Court concluded that Priyanka Sharma had committed something “wrong” for which she needs to tender an apology?
Having studied thousands of judgments of the Supreme Court on the issue of bail for my 1600-page book on law relating to arrests and bail [Law of Bail, Bonds, Arrest and Custody (2009 Edition), published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0)], I find this order of the Supreme Court to be a unique one wherein a person being released on bail is asked to tender an apology as if she is held guilty at this earlier stage itself.
I have seen cases in which a condition is imposed (while granting bail) to not to repeat similar acts in future, but I have not seen cases in which the person concerned is asked to apologise for the very act that is the subject matter of the case, since that would tantamount to pre-judging the issue before a regular trial has been conducted.
So, in my humble opinion, it was open to the Supreme Court to refuse bail, if it considered the case to be a serious case (though it was not). It could even have imposed a condition for grant of bail to not to repeat similar act in future. But, having decided to grant bail, the Supreme Court could not and should not have pre-judged the issue (much before trial) presuming the person concerned to be guilty and asking her to apologise in writing for sharing the meme.
So, looked from different angles, I am of the respectful opinion that the Supreme Court order in the above case was wrong in so far as it asked Priyanka Sharma to tender an apology in writing for the meme shared by her.
