Two Supreme Court benches, two different takes on freedom of speech and expression

The SC. which recently granted bail to journalist Prashant Kanojia & BJP worker Priyanka Sharma, asked the latter to issue an apology as a pre-condition for bail before waiving it.

File image of the Supreme Court of India | Manisha Mondal | ThePrint

New Delhi: Faced with two cases of social media-related “offences” targeting as many chief ministers within a month, two vacation benches of the Supreme Court employed two varying approaches to the freedom of speech and expression.

Journalist Prashant Kanojia was arrested earlier this month for posting a video where a woman claimed to have had an online romance with Uttar Pradesh Chief Minister Yogi Adityanath. Bharatiya Janata Party (BJP) worker Priyanka Sharma, meanwhile, was taken into custody in May for a meme in which West Bengal Chief Minister Mamata Banerjee’s face had been morphed onto actor Priyanka Chopra’s, in a photo taken at this year’s Met gala.

Hearing Kanojia’s bail plea this Tuesday, a bench comprising Justices Indira Banerjee and Ajay Rastogi said the right to freedom of speech and expression, guaranteed by Article 19 of the Constitution, is “non-negotiable”, and granted him bail.

However, while granting bail to Sharma on 14 May, another bench, comprising Justice Banerjee and Sanjiv Khanna, initially conditioned her release on an apology, saying, “Freedom of expression is non-negotiable but it cannot encroach on the rights of another… this is not done…it is wrong to put one’s face onto some other person.”

The condition was subsequently waived when Sharma’s lawyer Neeraj Kishan Kaul said that asking for an apology before her guilt had been determined would amount to a violation of her fundamental right to freedom of speech and expression.

Arbitrary arrests

Sharma was charged under Section 500 (defamation) of the Indian Penal Code (IPC), and Sections 66A (offensive messages) and 67A (punishment for publishing or transmitting material containing sexually explicit act, etc. in electronic form) of the Information Technology Act.

The FIR is understood to have followed a complaint filed by local Trinamool Congress leader Vibhas Hazra.

Sharma was produced before a Howrah court, which remanded her in judicial custody for 14 days — regardless of the fact that Section 66A had been struck down by the Supreme Court in 2015, Section 67A does not apply to the facts of the case, and Section 500 is a bailable offence.

In Kanojia’s case, police filed the FIR “suo motu” under Section 500 of the IPC and Section 66 (fraudulently or dishonestly damaging a computer system) of the Information Technology Act, alleging that Kanojia had made defamatory comments against CM Yogi Adityanath of the BJP, with an intention to “malign the image of the Chief Minister”.

He was arrested despite Section 500 being a non-cognisable offence, which does not allow arrest without a warrant, and Section 66 having no connection to the allegations against him.

He was then produced before the magistrate and remanded in 11 days’ judicial custody.

Both the arrests prima facie seem arbitrary, and habeas corpus petitions under Article 32 (remedies for enforcing constitutional rights) were subsequently filed to secure bail.

However, while the court did grant bail to them, Sharma was at first directed to “tender an apology in writing for putting up/sharing the pictures complained of on her Face Book Account (sic)”.

This, despite the fact that the Supreme Court has time and again upheld the supremacy of the right to freedom of speech and expression, holding that “commitment to free speech involves protecting speech that is palatable as well as speech that we do not want to hear”.

It has often quoted a declaration often attributed to Voltaire, “I despise (sic) what you say but will defend to the death your right to say it”, and has advocated for the “need to tolerate unpopular views in the socio-cultural space”.

Hence, any restriction on free speech is usually scorned upon, unless it falls under reasonable restrictions such as public order, decency, morality, defamation etc. enshrined under Article 19 (2) of the Constitution of India.

Defamation, the crime that the two of them were charged with does amount to a reasonable restriction under Article 19(2). But the court has ruled that any such restriction “must be justified on the anvil of necessity and not the quicksand of convenience or expediency”, and has reminded petitioners to “practice tolerance to the views of others”.

Common citizen vs political leader as accused

In seeking an apology from Sharma, the court seemed to have considered her case unique, owing to the fact that she was a member of a political party that was participating in the Lok Sabha polls, which were underway when the meme was posted.

This is evident in the fact that when Kaul objected to the apology, Justice Khanna was quoted as saying, “This is not about what is legally wrong. But she is a leader of a contesting political party. Had she been a common citizen, there would have been no problem.

“Elections are going on,” he added. “She is a BJP leader and her post could be perceived otherwise by the opposite side. If it were your leader, you would too be offended…is there any issue in saying sorry? If someone has been hurt by your action, apologising won’t bring you down.”

The court also noted in its order that it was being passed “in the special facts and circumstances of this case” and that it shall not operate as precedent.

The special circumstances could be the tumultuous situation at hand, that is, the violence reported between the BJP and Banerjee’s Trinamool Congress around the time the meme was posted and the case heard.

As for the apology, the court usually directs an accused to tender an unconditional apology after finding them guilty of defamation, in addition to other punishments, as everybody is presumed to be innocent until proven otherwise.

There are several grounds for bail within criminal jurisprudence, including striking a balance between personal liberty and presumption of innocence of the accused, and the interest of the state in prosecuting the criminal. But none of these grounds, whether within the Code of Criminal Procedure or precedents, lists an apology as a pre-condition.

An earlier version of the report said the two cases were heard by the same vacation bench. The error has been rectified.