Morphed freedoms: on Mamata photo controversy

By seeking an apology while granting bail, the Supreme Court downplayed the misuse of law

The case of a BJP Yuva Morcha functionary being arrested in West Bengal for sharing a morphed image of Chief Minister Mamata Banerjee demonstrates how wrong and needlessly oppressive legal processes can turn out to be. The police in Howrah registered a case and arrested Priyanka Sharma under irrelevant and non-existent provisions, a magistrate showed little application of mind while remanding her to judicial custody, and even the Supreme Court, while ordering her immediate release, did not recognise sufficiently the perverse manner in which the law was being used. It is a matter of some consolation that the apex court observed a day later that the arrest was arbitrary and pulled up the West Bengal government for delaying Ms. Sharma’s release for technical reasons. The police, apparently realising that there was no offence in the first place, has filed a closure report terming the complaint a ‘mistake of fact’. It is a reflection of the level of acrimony between the ruling Trinamool Congress and the BJP in the midst of a violence-marred, multi-phase election that the police entertained a complaint from a Trinamool Congress activist and booked Ms. Sharma for criminal defamation and offences under the provisions of the Information Technology Act. It is possible that some considered the morphed image — in which Ms. Banerjee’s face was appended to an actor’s photograph at a museum event in New York — defamatory. But it is unclear how the police could arrest someone for defamation based on a third party’s complaint.A cyber-crime police station handled the case, apparently because it involved Section 66-A of the IT Act, a provision declared unconstitutional in 2015, and Section 67-A, which can be used only when sexually explicit material is transmitted in electronic form. Thus, what was at best a case of defamation, a non-cognisable and bailable offence, was projected as a cyber-crime with the sole aim of getting the accused remanded. While magistrates are often known to act mechanically — although that is no excuse for remanding the accused in this case — it is disconcerting that a Bench of the Supreme Court ventured to advise her to apologise for sharing the image on Facebook. The court included a gratuitous sentence in its order that “the detenu shall, however, at the time of release, tender an apology in writing”. The inclusion of an apology requirement gives the impression that the court was more concerned about cooling frayed tempers than about the blatant misuse of the law. Another disconcerting aspect is that the police continue to invoke Section 66-A. In January, the apex court sought the Centre’s response on a petition that claimed that police officials were unaware that the section is no more on the statute book. As the main issue of freedom of expression thrown up by this case is going to be heard in detail later, it is hoped the aberrant developments so far will give way to a reasoned verdict.