Sheer Abuse Of Freedom Of Speech: MP High Court Denies Anticipatory Bail To Cartoonist For Alleged Objectionable Caricature On PM Modi

The Madhya Pradesh High Court denied anticipatory bail to Cartoonist Hemant Malviya, accused of drawing a derogatory post including a "caricature" on Prime Minister Narendra Modi and the Rashtriya Swayam Sevak (RSS) which is stated to be published on Malviya's Facebook page. 

The complaint against him alleged that the caricature shows the parties in an undignified manner, which allegedly hurt the religious sentiment of the complainant. 

Noting that the cartoonist 'clearly overstepped the threshold of freedom of speech and expression', the bench of Justice Subodh Abhyankar opined, "that the custodial interrogation of the applicant would be necessary". 

The court thereafter observed that on the "on the face of it" Malviya's conduct in depicting the RSS, a Hindu organisation along with the PM in the caricature, coupled with his "endorsement of a rather demeaning remark" dragging unnecessarily the "name of lord Shiva in the comments tagged to it", is nothing but the "sheer misuse of the freedom of speech and expression" as enshrined under Art.19(1)(a) of the Constitution, and falls under the definition of offence as contended by the complainant.

On the objectional content in question the court noted:

"On due consideration of the rival submissions and perusal of the case diary, it is found that in the applicant's Facebook page which has been found to be objectionable by the complainant, RSS is shown in a human form with its Khaki shorts with a black belt and white shirt, which is the uniform of RSS. This man is bending over with his shorts pulled down and exposing his bottom to the caricature of the Prime Minister, who is shown with a stethoscope around his neck and who is also holding an injection in his hand, which he is administering on the bottom of the person bending over i.e. RSS". 

"In the considered opinion of this Court, the post becomes more unsettling when the aforesaid derogatory lines involving Lord Shiva are also added to it, and which have also been favourably endorsed by the applicant himself who is also encouraging other people to experiment with the said caricature, which certainly cannot be said to be made in good taste or faith. It is apparent that the applicant's aforesaid act is deliberate and malicious intended to outrage religious feelings of the complainant and the public at large by insulting its religion, which is prejudicial to the maintenance of harmony in the society," the court said. 

The court said that the benefit of Supreme Court's Arnesh Kumar guidelines will not be available to the cartoonist who had clearly demonstrated his propensity to commit the said offence and to promote the same in future also, the provisions of s.41(1)(b)(i) and (ii) would be attracted in full force and he cannot take recourse of the benefit of the provisions of s.41A of Cr.P.C./s. 35 of BNSS. 

On the petitioner's argument making a comparison of his work with the work that of noted cartoonist R.K. Laxman, the high court said that no such caricature drawn by R.K.Laxman or any other noted cartoonist had been shown to the court which could be termed as similar or close enough to the caricature drawn by Malviya. 

The cartoonist, represented by Advocate Rishabh Gupta, submitted that the caricature was drawn as part of his satirical work, which was only published on his Facebook page but was open for public access. 

The State, represented by Government Advocate Amit Raval, the cartoonist cannot be allowed to draw such caricatures in the freedom of speech and expression. The State further submitted that the cartoonist routinely makes such caricatures as depicted on his Facebook page. Such caricatures, the state argued, disturb the harmony of society. 

The court thus dismissed the anticipatory bail plea. 

For Applicant: Advocate Rishabh Gupta

For State: Government Advocate Amit Raval

For Objector: Advocate Govind Rai Purohit