New Delhi: Cartoonist Hemant Malviya does not appear to know his limits and has “clearly overstepped the threshold of freedom of speech and expression”, the Madhya Pradesh High Court has said, dismissing his plea for anticipatory bail in a case involving one of his political cartoons, which features an incriminating caricature of Prime Minister Narendra Modi and another in khaki shorts, representing the Rashtriya Swayamsevak Sangh (RSS).
Denying the Indore-based cartoonist relief last week, a bench of Justice Subodh Abhyankar said that his custodial interrogation, i.e., the questioning of a detained person by the police in connection with a criminal investigation, was “necessary” in its opinion.
Hemant Malviya had posted a political cartoon, which allegedly portrayed PM Modi and RSS caricatures in—what the court said was—an “undignified manner”, on his Facebook page. RSS activist Vinay Joshi, the complainant in the case, said that he found it offensive to his religious fervour, temperament, and feelings.
After due consideration, the Madhya Pradesh HC agreed the cartoon was objectionable. A man in khaki shorts, a white shirt, and a black belt—the RSS uniform—represented the RSS, and “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,” according to the 3 July ruling of the HC.
The HC said the conduct of Hemant Malviya in depicting the RSS, a Hindu Right organisation, and the Prime Minister, coupled with his endorsement of a demeaning remark unnecessarily dragging the name of Hindu deity Shiva in the comments tagged to the cartoon, was nothing but the sheer misuse of the freedom of speech and expression, as enshrined under Article 19(1)(a) of the Constitution.
Underlining that the post becomes more unsettling with the derogatory lines concerning Shiva, the Madhya Pradesh HC accused Hemant Malviya of encouraging people to experiment with his caricatures, which, the court added, can surely not be said to have been made in good taste or faith.
Terming this act by Hemant Malviya as “deliberate”, “malicious”, and intended to outrage the religious feelings of the complainant, as well as the public at large, by insulting their religion, the HC said his act was prejudicial to the maintenance of harmony in society.
The HC rejected the argument of his lawyer, comparing his case to that of renowned Malgudi Days cartoonist R.K. Laxman, saying that Laxman’s cartoons—unlike those by Malviya—were not brought to the attention of the HC. Besides, their cartoons were not considered similar or even “close enough”, according to the HC.
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Case against the cartoonist
The case originated from a complaint by RSS activist Vinay Joshi against Hemant Malviya at the Lasudia district police station in Indore, Madhya Pradesh. The police charged the cartoonist under Section 196 of the Bharatiya Nyaya Sanhita (BNS), which applies against those promoting enmity between different groups on multiple grounds of religion, race, birthplace, residence, and language.
Besides, the police accused Hemant Malviya of offences, such as indulging in deliberate and malicious acts intended to outrage religious feelings, deliberately wounding religious feelings, making statements conducive to public mischief, and intentionally insulting with an intent to provoke breach of peace, slapping sections 299, 302, 353 (3) and 352 of the BNS on him.
Apart from this, Section 67A of the Information Technology Act, which entails the punishment for publishing or transmitting material containing sexually-explicit acts in electronic form and carries a sentence of up to five years imprisonment, along with a Rs 10 lakh fine, was also invoked against the cartoonist.
Subsequently, Hemant Malviya approached the court for anticipatory bail.
Hemant Malviya’s defence
Appearing for the cartoonist, advocate Rishabh Gupta said that Hemant Malviya had only drawn the cartoon and published it on Facebook as an open-to-all satirical work, arguing it was a case of false implication.
The post attracted some comments, but the cartoonist himself did not make them, and hence, could not be held responsible for them, the lawyer further told the Madhya Pradesh HC.
To say this, the lawyer relied on the 2014 Supreme Court ruling in Arnesh Kumar vs State of Bihar. Essentially, bail is the rule and jail is the exception in cases where imprisonment is for seven years or fewer.
The cartoonist also relied on the SC ruling in the Rajya Sabha MP Imran Pratapgarhi case, where an FIR against the MP over a “provocative” poem posted on his social media in March this year was quashed. Rejecting its connection with the current case, the HC shot back that the top court in the Imran Pratapgarhi case was considering the publication of a poem, which “did not have any religious connotations”, and the MP himself had not authored the poem.
How MP govt opposed his bail
Objecting to the plea, the Madhya Pradesh government argued that in the name of freedom of speech and expression, Hemant Malviya could not be allowed to draw caricatures depicting the RSS and the Prime Minister in an offensive or degrading manner.
The state government also argued before the Madhya Pradesh HC that Hemant Malviya had a habit of creating offensive caricatures from time to time, and his Facebook page showed a trail of such caricatures. Such cartoons disturbed the harmony of the society and often maligned the reputation of the RSS, a social organisation, the state also contended.
(Edited by Madhurita Goswami)
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