On July 3, Justice Subodh Abhyankar of the Madhya Pradesh High Court, while rejecting the anticipatory bail application of Indore-based political cartoonist Hemant Malviya, instead ordered that he be arrested by the police.
His supposed crime? Drawing a cartoon about Narendra Modi and the Rashtriya Swayamsevak Sangh which, Abhyankar claimed, “overstep[ed] the threshold of freedom of speech and expression”.
Malviya had been booked by the Indore police in May for the cartoon he had published on his Facebook page – which he has since deleted.
What are ramifications of this order for India’s political cartoonists?
A cartoon on Modi
Malviya had published his original cartoon on January 6, 2021, depicting Modi as a doctor administering an injection to a man dressed in what may appear to some as the uniform of the Rashtriya Swayamsewak Sangh.
This is accompanied with the Hindi caption “Abe kayko ghabra riya hai? Serum ke Poonawala ne bataya to vaccine me to paani hi hai, ab paani ke side effect se tu koi marega thode hi!” (Why are you worried? Serum’s Poonawala has said that the vaccine only has water, you won’t die from the side effect of water!)
This was a reference to Serum Institute of India’s chief executive Adar Poonawalla alleging that many Covid vaccines in the market were only as effective as water.
According to the court order, another Facebook user republished this cartoon, but replaced the caption with one in which the man in the purported RSS uniform addresses Modi as an incarnation of the Hindu deity Shiva and asks to be injected with such a strong dose of the caste census in his buttocks so that he forgets the Pahalgam terror attack, the controversial Waqf Act and everything else.
Malviya shared this amended version of his cartoon on Facebook on May 1, writing that anyone could use any of his cartoons by writing their own names and caption. All his cartoons were for the public, by the public and dedicated to the public, he said. He added that this amended cartoon was shared with him by a friend and that whoever had created the caption had written well.
FIR for a joke
On the basis of the cartoon with the amended caption, lawyer and RSS activist Vinay Joshi filed a complaint with the Indore police against Malviya on May 21 for showing Modi and the RSS “in an undignified manner, offending the complainant’s religious fervour and temperament and also hurting his religious sentiments”, according to the court.
The police booked Malviya under Sections 196, 299, 302, 352 and 353(3) of the Bhartiya Nyaya Sanhita and Section 67A of the Information Technology Act.
Section 196 of the Sanhita criminalises the promotion of enmity between different social groups or disturbing harmony among such groups. It provides for imprisonment of up to three years.
Sections 299 makes it an offence to deliberately and maliciously outrage the religious feelings of any class of Indian citizens. It also provides for imprisonment of up to three years.
Similarly, section 302 punishes the wounding of someone’s religious feelings with imprisonment up to a year.
Section 352 deals with the insulting of a person to provoke them to breach public peace. It carries a sentence of up to two years’ imprisonment.
Section 353(3) prohibits the spreading of such false information, rumours or alarming news at a place of worship or a religious assembly that is likely to create disharmony among social groups. It carries imprisonment of up to five years.
Section 67A of the act penalises the publication of sexually explicit material online with imprisonment up to five years and a fine of up to Rs ten lakh.
‘Misuse of freedom of speech’
Within days of the first information report being registered against him, Malviya’s plea for anticipatory bail was rejected by the Indore district court. He then approached the Madhya Pradesh High Court.
He argued before the High Court that while he had drawn the cartoon, the caption in the cartoon under scrutiny was not his, so he could not be held responsible for it.
However, in his order, Justice Subodh Abhyankar noted that the cartoon showed the RSS in human form, along with Modi, since the man was dressed in the RSS uniform.
He went on to hold that the depiction of the RSS, “a Hindu organisation” along with Prime Minister Modi, along with Malviya’s “endorsement of a rather demeaning remark, dragging unnecessarily the name of lord Shiva” amounted to the “sheer misuse of the freedom of speech and expression”.
Hence, even though Malviya’s own cartoon had no mention of Shiva, the court took a dim view of what it saw as Malviya’s “endorsement” of the caption invoking the deity.
“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 concluded.
This is unusual for an order rejecting an anticipatory bail application. In such pleas, the court’s task is restricted to determining the seriousness of the offence, the gravity of the accusation, the accused’s criminal record and their likelihood of absconding or tampering with evidence.
However, in its order, the court went a step ahead and essentially held Malviya prima facie guilty of the offences he is accused of.
On the basis of this conclusion, the court held that Section 41(1)(b)(i) and (ii) of the Code of Criminal Procedure are attracted. This provision allows the police to arrest someone without a warrant.
Then, to remove all doubt, the court noted that “custodial interrogation of the applicant would be necessary”.
As of July 9, Malviya was yet to be arrested.
‘Never felt such censorship in pre-Modi years’
Political cartoonists throughout the history of independent India have faced censorship pressures from governments. However, a High Court ordering the arrest of a cartoonist represents a new low.
Cartoonist Satish Acharya expressed concern about the precedent set by the order. “This order sets an example which will be grossly misused going forward,” he told Scroll. “This could be misused against not just cartoonists, but also against satirists, comedians and journalists.”
Cartoonist Manjul, who has himself faced government clamp-downs for his cartoons, agreed. “It is scary for everybody,” he said. “This is a threat to all free voices.”
Manjul questioned the need for Malviya to be interrogated in custody. “What will the police do, beat him up and ask him why he drew this?” he asked. “What about the ‘bail is the rule, jail is the exception’ mantra?”
He noted how the role of the judiciary had changed in the past decade by comparing Malviya’s case with the Bombay High Court’s famous defence of a cartoonist’s right to free speech in 2015. At the time, the High Court had criticised the booking of cartoonist Aseem Trivedi under the sedition provision of the Indian Penal Code for cartoons highlighting public corruption. The court had defended cartoons as a form of expression with an element of humour and sarcasm.
“In Aseem Trivedi’s case, the court reprimanded the state,” Manjul remarked. “In this case, the court is echoing the state’s stance and asking for custodial interrogation.”
Both Manjul and Acharya highlighted a perceived climate of fear after the Bharatiya Janata Party government came to power in 2014, leading to increasing censorship and self-censorship among artists.
Acharya said that censorship had been occurring at several levels since 2014, “not just at publications, but also on social media and in society”.
He added: “Any attempt to troll, harass and threaten by online trolls and to snatch jobs and remove cartoons by editors and powerful politicians is a form of censorship.”
Manjul was even more blunt, likening the present situation to “an undeclared emergency”.
“Show me a single widely circulated mainstream newspaper carrying government ads that also carries cartoons with Modi’s face,” he said.
He pointed out that the Tamil news website Ananda Vikatan was blocked in February after it published a cartoon depicting Modi, with his hands and legs chained, sitting across from United States President Donald Trump.
“I never felt such censorship in the pre-Modi years,” he said. “Even during the Vajpayee years, which was also an NDA [National Democratic Alliance] government, cartoonists had freedom to draw cartoons of political leaders, including the prime minister, without any pressure.”
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