Supreme Court granted bail to BJYM activist Priyanka Sharma who was arrested for publishing a meme on Mamata Banerjee by morphing West Bengal CM’s face into Priyanka Chopra’s Met Gala event image.

While granting bail, the Supreme Court put a precondition on Priyanka Sharma of tendering an apology to CM Mamata Banerjee. Later on, it modified the order and removed the condition of apology for granting bail. However, the Supreme Court has directed the accused to tender an apology.

The above development needs to be looked at in two perspectives.

First, Supreme Court is the highest institution for protecting the fundamental rights of the citizens (and also non-citizens in certain cases). Irrespective of whether Priyanka Sharma was released on bail or not, the Indian Judiciary (including HC and the Magistrate Court in West Bengal) has failed in protecting the fundamental right of the accused. The reason being that the police authorities have charged the accused under the S. 66-A of the Information Technology Act, 2000 (along with S.67A of IT Act and S.500 of IPC). The section itself is not in force as it was declared unconstitutional by the Supreme Court in Shreya Singhal V. Union of India in 2015.

Article 20(1) of the Constitution of India grants protection against Ex post facto law.

As of today, the law is settled that this protection can only be granted post conviction and not at the trial stage, if accused is charged with a law that is not in force.

However, the shortcoming on the part of Judiciary in present case can’t be neglected because it has taken prima facie cognizance of offence under S. 66A of the IT Act.

Second, while ordering the accused to tender an apology, Supreme Court has violated the basic principle of criminal justice system i.e. “an accused is innocent until proven guilty.” The accused had only applied for bail. Defamation is a bailable offence and hence, in this case, bail was a matter of right and not of discretion. The lower court had denied bail to her and hence she had knocked the doors of the Supreme Court.

Few questions that come up with respect to the demand for apology are:-

Has the Supreme Court concluded without a fair trial, which itself is a fundamental right, that accused is guilty of defamation?

Will the failure to tender of apology amount to contempt of court?

What will be the bearing of this order on the trial court if the matter goes to trial?

The Supreme Court will need to relook into its order of apology and protect the Freedom of Speech and Expression as it has done time and again. Otherwise, the direction to tender apology will have a chilling effect on our free speech jurisprudence.

[The opinions expressed in this article are the personal opinions of the author. The information, facts or opinions appearing in the article do not reflect the views of VERDiCTUM and VERDiCTUM does not assume any responsibility or liability for the same] 

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