A Supreme Court vacation bench on Tuesday came to the rescue of a 25-year-old woman from West Bengal who was arrested by the Trinamool Congress government for posting a meme with a morphed picture of Chief Minister Mamata Banerjee on Facebook last week.

The court order is suggestive of the fact that an arrest for such an innocuous act was grossly disproportionate.

Priyanka Sharma, a Bharatiya Janata Party member, was picked up by the West Bengal police following a first information report under the Information Technology Act and for the crime of defamation. Her lawyers moved the Supreme Court for bail, which promptly ordered her release with immediate effect.

However, the proceedings leading to the release of the woman raise some serious questions. What was before the court was a bail application which also raised certain points on the right to free speech and expression.

The bench, apart from dealing with the question of bail, waded into the complicated territory of what constitutes a crime and what is merely a wrong. The court said that politicians have a higher degree of responsibility when exercising the right to free expression. Sharma was first asked to apologise for her meme for the bail to take effect. The apology was then made non-conditional for the bail but the court still recorded that she will tender a written apology for her behaviour.

Even though the apology was not conditional for the bail, the fact that the court thought she had done something wrong without actually dealing with the substantial question of rights raised in the petition is a clear challenge to the idea of free speech.

Since the advent of social media, memes have become a popular and powerful way to express both criticism and dissent online. The Supreme Court pulling up a person for a meme and asking her to apologise sets a bad precedent and will encourage many others to move the court to extract an apology even if such memes do not contain anything illegal or criminal. This is despite the fact that the final order of the court on Tuesday said the decision in the case should not be seen as a precedent and fits only facts and circumstances of the particular case before the court.

In fact, media reports on Tuesday said that the West Bengal police had filed a closure report in the case, which essentially means that it felt the case did not fit the provisions initially invoked in the first information report. The state government itself, following heavy criticism, seems to have realised that this case does not deserve kind of action it initially pursued by sending Sharma to jail.

A constitutional court like the Supreme Court is expected to read the provisions of free speech liberally and expand its scope whenever possible. The test should always be whether a particular act has violated the reasonable restrictions placed on the right to free speech in the Constitution. Anything less cannot attract punishment, even in the form of an informal apology.

Also read:

The Daily Fix: Arrest of BJP leader for sharing Mamata meme illustrates Bengal’s illiberal turn