The Supreme Court on Wednesday censured the West Bengal government over the delay in BJP worker Priyanka Sharma’s release from jail after its Tuesday order.
At a press conference after her release, Sharma said she was not apologetic about sharing the meme and had been forced to sign an apology letter by the police.
Sharma, who had been arrested for posting a morphed image of Chief Minister Mamata Banerjee on social media, had not been released as of Wednesday morning, her lawyer NK Kaul told the court, Bar&Bench reported.
The counsel for West Bengal government then informed the court that the Bengal police had released Sharma around 9.40 am this morning, the legal news portal said.
Kaul, however, placed on record that Sharma was made to sign an apology letter before her release, a draft of which was prepared by the state police, Bar&Bench reported. This act of the police is in contravention of the Court’s order, Kaul submitted.
Kaul said Sharma was made to sign an apology letter by the Bengal Police that said she would not post the photo again.
At the press conference later, Sharma said she ill-treated by the police and would continue to fight the case.
The Supreme Court said had she not been released, it would have issued contempt, according to Bar&Bench.
The court also said the Sharma’s arrest was “prima facie arbitrary”, PTI reported.
A vacation bench comprising justices Indira Banerjee and Sanjiv Khanna was hearing the case.
Sharma had shared on Facebook the photo in which Banerjee’s face has been photo-shopped on to actor Priyanka Chopra’s picture from the MET Gala event in New York.
The bench on Tuesday had directed Sharma’s immediate release on bail, days after she was arrested by the Bengal police for allegedly posting a morphed Mamata Banerjee on social media.
The top court directed Sharma to tender a “written apology” at the time of her release from jail for sharing the meme on Banerjee saying that freedom of speech of an individual ends when it infringes upon others’ rights.
Sharma was arrested on May 10 by the police under section 500 (defamation) of the IPC and under other provisions of the Information Technology Act on a complaint of a local Trinamool Congress leader Vibhas Hazra.
She was sent to 14-day judicial custody by a trial court.
The bench which initially said that Sharma’s apology will be a bail condition, later clarified that it will not be a condition for bail but she should apologise for sharing the post at the time of her release.
“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 Facebook 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 bench said.
The court also sought response from West Bengal government on whether a person can be arrested for sharing a post or meme on social media and posted the matter for further hearing after the summer vacation.
At the outset, senior advocate Neeraj Kishan Kaul, appearing for Priyanka’s brother Rajib Sharma who has filed the plea in the apex court, said she was arrested and sent to 14-day judicial custody just for sharing the post which was already widely viral.
“She is not the creator of the meme but only shared it on social media which was already shared by thousands of people,” Kaul said.
To this, the bench said, “There cannot be any equality to the wrong. Your freedom of speech and expression is non-negotiable but your freedom ends when it infringes upon the rights of other.”
“We have seen the picture which has been shared. If someone is hurt then you can apologise for it,” the bench said.
Kaul contended that apology will have a chilling effect on the fundamental right of freedom of speech and expression.
“We do not see that there should be any difficulty for you in apologising for your post on social media. We are not asking you to apologise for others.
“Let her tender an apology we will forthwith grant bail. You take instruction. Since you are member of BJP the insinuation is different. The other side may have taken it differently. Had you been a common person, then may be it could have been no problem,” the bench said.
Kaul said the provisions of IT Act and IPC under which she was arrested does not apply in this case.
Referring to the apex court’s verdict in Shreya Singhal case in which the court had scrapped section 66A of the IT Act, Kaul said Sharma has been arrested by the police under this provision also.
The court said that it was keeping the question of law open on whether arrest can be made for sharing such posts and at present is only dealing with the bail.
“You are a member of a political party. Elections are going on. We understand all these things,” the bench said, adding that “you cannot put anybody’s face on anybody. If it is going round. It is wrong”.
Kaul contended that such an apology would have a chilling effect on freedom and speech and expression and tomorrow West Bengal police can arrest anybody for four days for giving a statement and then ask for an apology.
“If you say sorry, it does not bring you down. We are not going on the angle of freedom of speech and expressions,” the bench told Kaul at the fag end of hearing.
Section 500 of the Indian Penal Code (IPC) entails punishment for defamation with simple imprisonment for a term which may extend to two years, or with fine, or with both.
Her arrest was followed by protests from the BJP and other social media users.
(With PTI inputs)