New Delhi: The Supreme Court’s vacation bench comprising Justices Indira Banerjee and Sanjiv Khanna on Wednesday had reasons to be disappointed with the West Bengal government for delaying the release of the detained Bharatiya Janata Party worker, Priyanka Sharma, even though it had ordered her immediate release on Tuesday morning.The vacation bench was informed that the jailor of the Alipore Women’s Correctional Home, where Sharma was detained, had refused to release her on May 14 on the basis of the electronic copy of the orders of the apex court, and instead insisted upon an endorsement by the chief judicial magistrate.More significantly, the bench was also told by her brother’s counsel that the state government concealed the fact of closure of the case against her during the hearing on Tuesday.Had the bench been informed about the closure of the case, it might not have passed its order directing Sharma to tender a written apology to West Bengal chief minister Mamta Banerjee.The insistence on her apology as a precondition for her release, despite the court having second thoughts on the use of a word suggesting it, diminished the court’s commitment to the constitution’s guarantee of freedom of expression, which has been the hallmark of its jurisprudence.The application, filed by her brother, Rajib Sharma, in the Supreme Court refers to the closure report shared on various social media platforms stating that a “mistake of fact” has been committed on the part of the investigating authorities in arresting her for the meme. The application rightly argues that if the closure report is true, then it clearly reinforces the petitioner’s contention that her arrest and detention in the first place was illegal, and further begs the question as to why her custody was continued beyond May 13.Also read: Accountability, Not Curbs on Free Speech, is the Answer to Harmful Content OnlineIronically, rather than consider the application and recall its May 14 order asking her to apologise for the meme, the bench posted it for hearing in July. Meanwhile, reports suggest that before her release on Wednesday morning, Priyanka Sharma was forced to sign a written apology – drafted by the police – that she would not repeat the Mamata meme.Although the bench on May 14 might have meant to modify its initial order not to make her apology a precondition for her immediate release, the final wording of the order as uploaded on the Supreme Court’s website, did convey the meaning that her release was linked to her apology. The order read:“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. 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. The questions raised are kept open.”BJP youth leader Priyanka Sharma after her release. Credit: PTIAn apology, in order to be acceptable, has to be voluntary. A forced apology, therefore, raises questions about the purpose of the whole exercise in seeking her apology, as a precondition for her release – and the legitimacy of the Supreme Court’s insistence on an apology, especially when the bench was convinced that her arrest was arbitrary in the first place.Meme as political communication One is at a loss to understand what “special facts and circumstances” the court found in this case to justify its demand that Sharma apologise for a meme. That she and Mamata Banerjee belong to rival political parties alone can hardly justify why a person cannot exercise her freedom of expression to use memes as a tool of political communication.Richard Dawkins, a pioneer in the study of memetics, introduced the concept of ‘memes’ in his book, The Selfish Gene (1976). The term `meme’ comes from the Greek word mimeme which means to imitate. Patrick Davison defines an internet meme as “a piece of culture, typically a joke which gains influence through online transmission”.Memes have played an important role in political discourse. One of the most prominent memes in recent times was the #ZodiacTed that went viral during the elections in the US in 2016. Ted Cruz Zodiac Killer refers to a mock conspiracy theory suggesting that the 2016 Republican presidential candidate Ted Cruz is the unidentified serial killer nicknamed “Zodiac” who claimed to have killed 37 people in a series of anonymous letters in the late 1960s and early 1970s.Cruz was the runner-up for the Republican nomination for president of the US in the 2016 election. He won 12 states, before withdrawing from the race. A survey by Public Policy polling concluded that due to these memes, about 40% of voters in Florida thought that he was actually the Zodiac killer, and their voting decisions were influenced.Cruz, born in 1970, could not have committed these murders, which began before his birth. Circulators of the meme did not genuinely believe that he was the Zodiac killer, citing the absurdity of its premise. National Public Radio (NPR) wrote that the meme captured “a feeling they have about Cruz: they think he’s creepy. And they want to point that out, as clearly as they can.”In February 2016, a Twitter user used Photoshop to edit a picture of a Republican debate in order to include “Is Ted Cruz the Zodiac Killer?” in the interactive ticker at the bottom.Cruz’s tweets showed he fully embraced the joke. He tweeted out a photo similar to the killer’s cryptic notes.The Met GalaThe Met Gala has a theme every year and celebrities are expected to dress accordingly. Last year, the theme was “Heavenly Bodies: Fashion and the Catholic Imagination”. This year, the Met Gala set the theme “Camp: Notes on Fashion”. Basically, the theme emphasises how over-the-top fashion has, over the years, been a medium for people to express their wilder sides. In fact, exaggeration in fashion has always been considered to be a form of escapism.Actor Priyanka Chopra’s dress and cape covered in feathers and tulle, wrote Jasodhara Mukherjee, “was the epitome of exaggerated fashion and perfectly suited to the theme”. Many called the outfit outrageous. Like Cruz, Mamata Banerjee could have made fun of the meme itself, and turned it to her advantage as a compliment of sorts, rather than convey that she had been offended.The revival of Section 66A As the case docket challan submitted in the court of the chief judicial magistrate, Sadar Court Howrah, enclosed with Rajib Sharma’s application for Priyanka Sharma’s bail makes it clear, the Cyber Crime Police Station, Howrah City Police, filed its closure report as FRMF (Mistake of Fact) No.11/19 dated 13.05.19 u/s 500 IPC and 66/67A IT Act, 2000 after completion of its investigation. The case docket contains 39 pages, and might offer clues as to why and how the investigation yielded no results. But one need not wait for the disclosure of the case docket to understand the absurdity of the allegations against her.Also read: Narendra Modi and Amit Shah Have Met Their Match in Mamata BanerjeeThat the state police invoked Section 66A of the Information Technology Act, without application of mind in this case, must make the Supreme Court take action against the erring officials. The Supreme Court had declared Section 66A of the IT Act ultra vires, and inconsistent with the constitution’s guarantee of freedom of expression in the Shreya Singhal case in 2015. The section sought to penalise anyone who sends, by means of a computer resource or a communication device any information that is grossly offensive or has menacing character; or any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will etc. The Supreme Court bench of Justices J. Chelameswar and Rohinton Fali Nariman had declared it unconstitutional for being too broad, apart from other grounds.Although the closure report of the police in the Mamata meme case refers to Section 66 of IT Act as having been invoked in this case, it is clear that the police had Section 66A in mind, oblivious of its striking down by the Supreme Court in 2015. Section 66, which deals with computer related offences, is to be read with Section 43, which deals with penalty and compensation for damage to computer, computer system, etc. which obviously has no relevance to the memes case.On February 15, while hearing a petition filed by the People’s Union for Civil Liberties (PUCL), the Supreme Court bench of Justices Nariman and Sanjay Kishan Kaul directed the Centre to make available copies of the Supreme Court’s judgment in Shreya Singhal v Union of India, delivered in 2015, to the chief secretaries of all the state governments and Union Territories, within eight weeks.“The chief secretaries will, in turn, sensitise the police departments in this country by sending copies of this judgment to the director general of police in each state, within a period of eight weeks thereafter,” the bench held in its order.Earlier on January 7, while hearing the same case, Justice Nariman, sitting with Justice Vineet Saran, had observed: “We will send everyone to jail who ordered the arrests (under Section 66A after the Shreya Singhal judgment). We are going to take very strict action.”The bench ought to have continued to monitor the case, rather than dispose off it on February 15. The bench was naïve to believe Attorney General K.K. Venugopal’s suggestion to send copies of the Shreya Singhal judgment to state officials was sufficient to ensure compliance with it. The PUCL had claimed that as many as 22 persons had been prosecuted under Section 66A after it was struck down by the court.The invoking of Section 67A IT Act, dealing with electronic transmission of sexually explicit acts or conduct, could not possibly be applied to this meme, as the fashion show could not be so described; the morphing of one’s photo by another by itself could not be sexually explicit, devoid of any other act or conduct.Section 500 of the Indian Penal Code is equally inapplicable in this case. Committing any act which constitutes defamation under Section 499 IPC is punishable offence under Section 500 IPC. But invoking Section 499 IPC must satisfy the ingredients of Section 199(1) of CrPC.The Supreme Court’s judgment in Subramanian Swamy v Union of India has rejected the contention that the words “some person aggrieved” in Section 199(1) can include any and everyone. In the Mamata meme case, the chief minister herself has not complained against it; nor did the public prosecutor complain in writing with the previous sanction of the state government, as required under the law. It is not surprising that the authorities filed a closure report in the case, bereft as it was of any legal support to the allegations.The cartoon sagaThe Mamata meme case, however, points to other aberrations so characteristic of the state government’s history of non-compliance with the orders from the higher judiciary.The West Bengal Human Rights Commission had recommended to the state government to pay compensation of Rs 50,000 each to professor Ambikesh Mahapatra of Jadavpur University and Subrata Sengupta (a septuagenarian engineer who, prior to his superannuation, was an employee of the state government) for their wrongful detention for 24 hours in 2012 for merely circulating by email a cartoon which was considered as derogatory to Mamata Banerjee.Both Mahapatra and Sengupta have been on bail since then. Sengupta passed away on May 11, without getting the compensation awarded to him. The WBHRC also recommended departmental action against the police officials who arrested them for a non-cognisable offence. The state government, however, refused to comply with the recommendation, saying there was no violation of human rights warranting payment of monetary compensation and that departmental action against the police officials was not warranted.Calcutta high court. Credit: Wikimedia CommonsJustice Dipankar Datta of the Calcutta high court, in a reasoned judgment on March 10, 2015, found the WBHRC’s recommendation justified. Both the WBHRC and Justice Datta rejected the state government’s claim that Mahapatra and Sengupta were taken into ‘protective custody’ to rescue them from an unruly mob, which was agitated by their action of circulating the cartoon. The police did not arrest anyone from among those who forcibly confined the two.A fortnight after they circulated the cartoon to the members of the cooperative Housing Society, Mahapatra and Sengupta sent two further emails to them expressing their regret and apology for having used the official email account of the housing society for the purpose.The cartoon was based on the story line in a feature film meant for children called Sonar Kella directed by Satyajit Ray. The cartoon made fun of Banerjee replacing the then Union railway minister, Dinesh Trivedi, with Mukul Roy, after she was displeased by the budget presented in parliament by the former. In the film, a part of the story is that one professor was pushed down the mountain by the villain, and when the professor was not visible, the villain told Mukul, the child-hero in the film, that he had vanished. The cartoon depicts Banerjee telling Roy that the previous railway minister had vanished, and the Indian Railways is depicted as Sonar Kella – the golden fort.Mahapatra and Sengupta were arrested by the police a fortnight after the cartoon was circulated, and that too on the complaint of a person who did not even receive the email. The police arrested the two, without even seeing the cartoon, from their residential complex when they were peaceful, and that too at the dead of night.The WBHRC said in its report, “No law in our country prevents criticism against ministers or the chief minister, however popular they may be, or even a door to door critical campaign against ministers unless the campaign offends any prohibition in law.”The state government appealed against Justice Datta’s judgment before a division bench of the Calcutta high court, where it has been pending since 2015. Ironically, the division bench did not stay Justice Datta’s judgment, and therefore, the state government is duty-bound to comply with it. Yet, there has been no compliance so far.The criminal case filed under Section 66A of the IT Act, for circulating the cartoon is also pending against Mahapatra and Sengupta (which now stands abated following his death) before the Alipore Criminal Court, despite the court having been informed about the subsequent striking down of Section 66A by the Supreme Court in the Shreya Singhal case. A petition filed in the Calcutta high court seeking the quashing of the proceedings before the Alipore court is also pending.In the interview with The Wire, Mamata Banerjee has disowned any responsibility over the arrest of Priyanka Sharma for the meme, as the police is not under her during the elections, although she justified the court’s insistence on her apology. She also claimed credit for ‘ordering’ her release. She should display a similar spirit in the cartoon case and ensure compliance with the WBHRC’s recommendation and the high court’s single-judge order.
