The Supreme Court vacation bench has granted bail to Priyanka Sharma of the Bharatiya Janata Yuva Morcha (BJYM) in West Bengal. This was scrupulously correct, because bail is a right except in special circumstances, where the accused is deemed to be likely to misuse her freedom to interfere with the course of justice.
Initially, the bail granted was conditional upon Sharma tendering an immediate apology for sharing a bizarre meme online, showing West Bengal chief minister Mamata Banerjee. The final order was softened to restore Sharma’s liberty without a pre-condition, but it required her to apologise after being set free.
This rider was deeply problematic on multiple counts. First, the court appears to have asked for an apology because the post was made by a political worker during elections, though situational matters generally do not concern the process of justice. What is deemed to be just today should be deemed so for all time. Second, Sharma’s counsel has argued that she had only re-posted a pre-existing meme.
The judicial remand of Sharma for 14 days was a travesty of justice, especially by a government that, ironically, claims to be pushing for a more liberal space. The judicial action, without doubt, was out of proportion with the act of forwarding a meme, and the demand for an apology by the highest court, as a condition following her release, heaps insult upon injury. Third, while the court is correct in observing a principle of natural justice, which requires a balance in the rights of individuals, Sharma’s alleged transgression cannot have been probed sufficiently in a single hearing. Indeed, the order states: “The questions raised are kept open.” To require her to apologise when her transgression has not been sufficiently established militates against natural justice.
Though the order states that “it shall not operate as a precedent”, if the need for an apology is eventually upheld, the effects would be catastrophic, for all satire is political in nature and intent. Cartoonists would have to publicly repent every morning, shortly after newspapers land on the doorsteps of readers. Stand-up comics could apologise in the evenings, after the show.
Theatre and cinema producers and directors dealing in political issues (and what is drama if it is not political?) would have to send pre-emptive apologies to the powers that be before their shows opened. And satire would be declared dead on arrival. The meme shared by Sharma was merely bizarre, even if it involved a political personality. If producers of real political satire could be prosecuted until they apologised, it would be the death of free speech.