It is one thing for individuals to offer their opinion on what should and shouldn’t be said or aired in public. It is quite another when those occupying high seats in the apex court of the country act as if they were confronted with a moral dilemma over how to apply the law on such issues. On Tuesday, the Supreme Court seemed unsure of itself while hearing the case of Priyanka Sharma of the Bharatiya Janata Yuva Morcha. Even though its vacation bench granted Sharma bail, it initially did so by asking her to tender an immediate apology for sharing a meme online that had a morphed image of West Bengal chief minister Mamata Banerjee. The role of the court in this case was to examine whether the accused deserved a 14-day remand in custody for forwarding (not even creating) that meme. Instead, the bench said: “Freedom of expression is non-negotiable, but it cannot encroach on the rights of another" and that “it is wrong to put one person’s face on another". Another judge said that Sharma was from “an opposite political party, and not a common citizen". Even though the court restored Sharma’s liberty in its final order without any pre-condition, it still asked her to apologize after being set free.
The case raises broader questions. Why has it become so common for the police to put people behind bars because of something they said or did that offended a politician? Are satire and other forms of humour to be constrained within limits set by powerful people who might take offence? Also, police departments across the country tend to presume that a morphed picture somehow constitutes a law violation in itself. At most, airing such an image could possibly amount to an act of defamation, and that too, only if a complainant establishes that his or her reputation was damaged by it. The oddest part, perhaps, is that Section 66A of the Information Technology Act, 2000, which dealt with “offensive messages" and was scrapped by the top court in 2015, continues to serve as a club to bludgeon freedom of expression with. While a large number of citizens may be unaware that the draconian legal provision is no longer in force, why is it still being used by law enforcers?
We live in an age of indeterminacy as to where exactly the law stands on freedom of expression. In a country where judicial processes are sclerotic, what the police consider illegal assumes extraordinary significance. It is well known to anybody on social media that prosecutions in such cases are extremely selective. This is because the filing of complaints, registration of cases and the arrest of alleged offenders are often guided by dominant political interests and the power wielded over the system by associated social groups. Lawyers are known to sigh that they know the law, but are not sure how it will pan out. The manner in which hearings take place seems to confirm these misgivings. Seeking an apology for a meme is not the job of the judiciary, which is supposed to be our last line of defence against abuses of fundamental rights. Freedom of speech and expression is guaranteed under Article 19(1) (a) of the Constitution. It’s a pity that seven decades after it came into force, confusion over its applicability prevails at the highest levels of our legal system.