Mamata meme case: SC order discourages satire and free speech

When courts display an inclination to readily exercise these ¬ suo moto powers to regulate speech that may be considered hostile towards the political class ¬ they engage in viewpoint or content-based discrimination. This is a far cry from their role as protectors of rights, and is also outside the bounds of Article 19(2) of the Constitution.

This week saw the Supreme Court (SC) caught up in another controversy over the release of Bharatiya Janata Party (BJP) worker, Priyanka Sharma, who shared a meme superimposing the face of West Bengal chief minister, Mamata Banerjee, on that of Priyanka Chopra’s Met Gala photograph. Sharma was arrested and sent to 14 days judicial custody for offences under Sections 66A and 67A of the Information Technology (IT) Act and for defamation under Section 500 of the Indian Penal Code.

An undated picture of BJP activist Priyanka Sharma, who was arrested for allegedly posting morphed image of West Bengal Chief Minister Mamata Banerjee on social media. The Supreme Court granted her bail in the case on May 14(PTI)

Her brother moved the SC seeking her release, compensation for the illegal arrest, and for quashing the complaint against her. He was forced to come to the SC, instead of approaching the Calcutta High Court, because lawyers in West Bengal have been on strike since April.

I want to focus on the court’s order directing Sharma’s immediate release on bail, although “at the time of release, [she has to] tender an apology in writing for putting up/sharing the pictures complained of on her Facebook account.” The SC, meanwhile, has kept the “questions raised” — presumably about the use of executive power to chill free speech and artistic expression — open.

This should have been a simple case, with the SC directing Sharma’s release. However, the observations made by the SC and the emphasis in the order on the issuance of an apology were a mistake.

First, it never bodes well for constitutional courts when they seek to censor speech instead of protecting it, especially when that speech presents a counterpoint to the present ruling class. After all, the right to free speech includes the right to speak out one’s mind, “not always with the best of tastes” and “with greater courage than care for exactitude” (Sheela Barse vs. Union of India, 1988).

At the end of the day, we are talking about a satirised photo that is being used to poke fun at the chief minister even if it is in bad taste. It should be either brushed off with a laugh, or viewed and ignored as political propaganda by the ruling party at the Centre. Instead, when leaders, and courts, lose the ability to tolerate criticism, they come dangerously close to undermining constitutional and democratic values. During the Emergency, for instance, it was our elected leaders who chose to silence criticism by banning films such as Kissa Kursi Ka and Aandhi.

Second, although the SC did not make Sharma’s release conditional on the grant of an apology, it still required her to submit a written apology at the time of release. The threat of contempt arguably makes the tendering of an apology necessary, and constitutes compelled speech. By linking the apology to the sharing (not even creating) a meme, the SC has effectively contributed to a chilling effect on free speech and pre-censorship and discouraged artistic expression and satire, both of which are necessary in a healthy democracy. When courts display an inclination to readily exercise these suo motu powers to regulate speech that may be considered hostile towards the political class, they engage in viewpoint or content-based discrimination. This is a far cry from their role as protectors of rights, and is also outside the bounds of Article 19(2) of the Constitution.

Third, the SC’s reported observations that the object of the meme was a leader of a contesting political party and had she been a common citizen there would have been no problem is contrary to Indian and global jurisprudence. It is well settled that a person who undertakes to fill a public office, elects to be in the public gaze, offers herself to public attack and criticism. The SC in the R Rajagopal vs State Of TN (1995) case cited the celebrated US Supreme Court decision of New York Times v Sullivan to hold in the context of civil defamation that persons in public life should be prohibited from filing a claim for defamatory falsehood relating to their official conduct, unless they can prove that the statement was made with “actual malice”.

Finally, the SC should have made judicial observations on the continued invocation of Section 66A of the IT Act, which criminalised offensive speech, despite the fact that it was struck down by the SC in Shreya Singhal in 2015. In fact, even the invocation of the offence of defamation under Section 500, IPC is suspect, since there was no “person aggrieved” by the sharing of the meme.

It is heartening that on Tuesday, while rehearing the petition due to the delay in releasing Sharma, the court reportedly termed her arrest “prima facie arbitrary.”. One can only hope that when it takes up the matter in July, the SC will strongly endorse the freedom of speech and artistic expression. Notions of morality and humour are inherently subjective and State power should not be used to set in motion the criminal process against political satire, criticism, or humour.

Political parties across the spectrum have only been too happy to use criminal law (whether sedition, defamation, or Section 66A, IT Act) to suppress criticism, and encourage self-censorship. Unless the judiciary sends a strong message criticising such actions, Sharma’s case will not remain an isolated incident.

Vrinda Bhandari is an advocate in the Delhi High Court

Thew views expressed are personal