The Supreme Court Tuesday ordered immediate release on bail of West Bengal BJP functionary Priyanka Sharma, arrested by the state police for “sharing” a morphed picture of Chief Minister Mamata Banerjee, but directed that she “shall” apologise for putting it up on her Facebook page.
Senior advocate N K Kaul, appearing for Sharma, contested the direction for apology saying “it will have a chilling effect on free speech”.
The bench of Justices Indira Banerjee and Sanjiv Khanna, after hearing Sharma’s bail plea, ordered: “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 Facebook account.”
While the order was being dictated, Justice Khanna made an oral observation “to clarify so that our order is not misunderstood, this is in the special circumstances of the case”. The order also reflected this: “It is made clear that this order is being made in the special facts and circumstances of this case and shall not operate as a precedent.”
As soon as the court took up the matter, Justice Banerjee said: “She should at least tender an apology. This is not done.” At this, Kaul said: “She has already deleted the tweet.” Justice Khanna asked the counsel if Sharma had any problem in tendering an apology.
“Yes, and I will explain why. It will have a chilling effect of the freedom of speech,” Kaul said, adding that she was not the creator of the meme and that it had been shared by many.
“We are not asking her to apologise on behalf of anyone else, but for herself,” Justice Khanna said. Justice Banerjee said “freedom of speech is non-negotiable, but your freedom of speech ends where it violates somebody else’s rights”.
But Kaul was persistent and asked “is humour which offends somebody… enough for arrest?”. He said that in such case, no common man would be able to share such posts.
On this, Justice Khanna said it would not have been a problem if the person sharing it was a common man. “But she is a member of BJP,” he said, adding “the insinuation has a different meaning” when it is done by a member of a political party.
Kaul sought to know how the court could make a distinction between a common man and a political activist. He said there are thousands of memes doing the rounds including against the Prime Minister.
The court said it was aware and wanted to put an end to such conduct. “If the other person feels offended,” said Justice Khanna. Kaul said that the import of the order was huge as it would mean people can be arrested for sharing memes and be released only if they apologise.
The bench then asked if she was ready to tender apology. If she wasn’t willing to “then we will put in order,” Justice Banerjee said.
The counsel replied that Sharma was in custody and no one had access to her. He said he will have to seek instructions whether she is willing to apologise. He said as an officer of the court, he will point out that the order can have an adverse impact on free speech.
The bench asked him to take instructions and it would hear the matter later, but the arguments continued. Kaul said Sharma had not violated any law, much less Section 66 A of the Information Technology Act which had already been struck down by the Supreme Court as unconstitutional.
He said Sharma was not the creator of the meme and that she had already deleted it. “Merely because she is a political worker, just a 25-year-old, she will have to now apologise,” he said.
As the counsel again referred to freedom of speech, Justice Banerjee said “you can put anyone’s face?… it’s wrong”. Kaul maintained that a direction to apologise will be “serious infringement” of the right to free speech. The bench then went on to dictate its order.
Sharma, whose Facebook profile describes her as Howrah district club cell convener of the Bharatiya Janata Yuva Morcha (BJYM), was arrested on May 10 for allegedly posting a picture of actor Priyanka Chopra with her husband Nick Jonas at the red carpet of the recent Metropolitan Museum of Art’s Costume Institute Gala in New York, with Banerjee’s face superimposed on the actor’s. The image is no longer on Priyanka’s Facebook timeline.
On May 11, she was produced before a court in Howrah which remanded her in judicial custody for 14 days. Police said they acted on the basis of a complaint by local Trinamool Congress leader Vibhas Hazra. Sharma, who joined the BJP six months ago, runs a shop near her home in Dasnagar in Howrah, where she lives with her mother and brother.