Law

SC Terms BJP Youth Leader's Arrest Over Mamata Meme 'Prima Facie Arbitrary'

The apex court's observation came after it was brought forth that despite the court's order on Tuesday, Priyanka Sharma had not been released from jail.

New Delhi: The Supreme Court on Wednesday termed as “prima facie arbitrary” the arrest of Bharatiya Janata Party youth wing leader Priyanka Sharma for allegedly sharing a meme of chief minister Mamata Banerjee on social media.

The apex court’s observation came after counsel for Sharma’s brother mentioned the matter before it and said that despite the court’s order on Tuesday, Sharma had not been released from jail.

Sharma told ANI, “My bail was granted yesterday, but still I wasn’t released for another 18 hours. They didn’t allow me to meet my advocate and family. They made me sign an apology.”

However, the counsel appearing for the West Bengal government told a vacation bench comprising Justices Indira Banerjee and Sanjiv Khanna that Sharma has been released from jail at around 9:40 am on Wednesday.

“This is not done. First of all the arrest was prima facie arbitrary,” the bench said, and warned the state that it would issue contempt notices against officials concerned if Sharma is not released immediately from jail.

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The bench then asked the counsel representing Sharma’s brother Rajib Sharma to take instruction on whether she has been released from jail or not. After a few minutes, the counsel apprised the court that she has been released from jail.

The apex court had yesterday granted bail to Sharma and had asked her to tender a “written apology” at the time of her release from jail for sharing the meme on Banerjee. While the court had earlier said that her release would be conditional on the apology, it later said that she would be released irrespective.

Sharma had been booked under under Section 500 of the IPC (defamation), and Sections 66A (offensive messages) and the non-bailable 67A (punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form) of the Information Technology Act. Her ‘offence’ was to share a meme in which Mamata Banerjee’s face was superimposed on actor Priyanka Chopra’s body, in the dress she wore to the 2019 Met gala.

The West Bengal government has been widely criticised over Sharma’s arrest, with many saying political leaders cannot use law and order agencies to stifle people’s freedom of speech simply because they were criticised or made fun of. Given that, the Supreme Court’s insistence that Sharma apologise has also come into question.

Lawyer Gautam Bhatia, for instance, has said on his blog:

The West Bengal police deemed it fit to book Sharma under Sections 66A and 67A of the IT Act, and Section 500 of the IPC. A moment’s reflection should make it clear that this entirely unsustainable. Section 66A was struck down as unconstitutional in March 2015, more than four years ago. Section 67A – the only non-bailable provision among these – which penalises transmitting images of sexually explicit acts or conduct, is inapplicable on the face of it. And it’s unclear how a piece of pure political satire attacks the reputation of the CM in a way that might bring it within the definition of defamation.

According to Bhatia, by insisting that Sharma apologise to Banerjee, the Supreme Court missed a crucial opportunity to set things right.

Instead of limiting itself to its job – to see whether the remand was justified – the Court promptly entered into the merits of the case itself. According to Indira Banerjee J. , it was “wrong to put one person’s face on another” (welcome to the 21st century!). According to Sanjiv Khanna J., the problem was that Sharma was from “an opposite political party, and not a common citizen” (what does that have to do with bail?).

…At a more deeper level, today’s hearing reveals yet again the sad truth that when it comes to free speech issues, judges seem simply incapable of applying the law and the Constitution. The standard they do seem to apply is “if I don’t like it, it must be wrong, and I’m going to do something about it.” That would be fine if they were sitting as family elders mediating a domestic quarrel; it certainly isn’t fine when they are sitting as judges in a constitutional court.

(With PTI inputs)

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