Case Summary and Outcome

In 2012, Indian political cartoonist Assem Trivedi created and published several cartoons online that allegedly defamed India’s Parliament, and the Constitution and spread hatred towards the government. He was charged with the offense of sedition under Section 124A of the Indian Penal Code. The Court noted that cartoons and caricatures are a form of expression with an element of humour or sarcasm. The bench found the cartoons in question were devoid of any wit, humour or sarcasm. However, in the Court’s opinion, that by itself could not be a reason to encroach upon his constitutionally protected right “to express his indignation against corruption in the political system in strong terms or visual representations … when there is no allegation of incitement to violence or the tendency or the intention to create public disorder.” The High Court issued a set of guidelines to be followed in applying Section 124A which stated that a written or spoken expression can be considered seditious only when it brings the government “into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the [g]overnment and the ords/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder.”

Facts

In November 2011, political cartoonist Assem Trivedi displayed several cartoons at a public meeting  in Mumbai. The meeting was part of a movement launched by Anna Hazare against corruption in India. Trivedi went on to upload some of his cartoons on a website called “Cartoons against Corruption.” Subsequently, several complaints were filed against him for defaming Parliament, the Constitution of India and sedition for attempting to spread hatred and disrespect against the government; he was subsequently charged with the offense of sedition under Section 124A of the Indian Penal Code. According to the section, “Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards the Government established by law in India, shall be punished with imprisonment for life, to which fine may be added, or with imprisonment which may extend to three years, to which fine may be added, or with fine.”

Trivedi protested the charge, claiming a violation of his right to freedom of expression under Article 19 of the Constitution. The State Advocate General, thereafter, decided to drop the charge of sedition. This public interest litigation sought to achieve clarity and foreclose the possible arbitrary invocation of Section 124A against the exercise of the right to freedom of expression.

Decision Overview

Chief Justice Mohit Shah delivered the judgment.

The Court extensively noted the classic sedition judgment of the Supreme Court in Kedar Nath v. State of Bihar, 1962 AIR 955, which discussed the contours of Section 124A of  vis-a-vis the constitutional right to freedom of expression. The High Court, in particular, highlighted that only those expressions that excite hatred or contempt against the government, having the tendency of creating public disorder through actual violence or incitement to violence are punishable under Section 124A. The Supreme Court in Kedar defined the scope of the penal law to include “any written or spoken words, etc., which have implicit in them the idea of subverting [g]overnment by violent means, which are compendiously included in the term ‘revolution’, . . .” Following this interpretation, the High Court held that “strong words used to express disapprobation of the measures of [g]overnment with a view to their improvement or alteration by lawful means would not come within the section.” [para. 9]

Relevant to the present litigation, the Court noted that cartoons and caricatures are a form of expression with an element of humour or sarcasm. The bench found the cartoons in question drawn by Trivedi were devoid of any wit, humour or sarcasm. However, in the Court’s opinion, that by itself could not be a reason to encroach upon his constitutionally protected right “to express his indignation against corruption in the political system in strong terms or visual representations … when there is no allegation of incitement to violence or the tendency or the intention to create public disorder.” [para. 16]

At the end of the judgment, the High Court issued a set of guidelines to be followed by police personnel in applying Section 124A . Among other things, the Court emphasized that a written or spoken expression can be considered seditious only when it brings the government “into hatred or contempt or must cause or attempt to cause disaffection, enmity or disloyalty to the [g]overnment and the words/signs/representation must also be an incitement to violence or must be intended or tend to create public disorder or a reasonable apprehension of public disorder.” [para. 17] Moreover, under the guidelines, the section does not apply to “[c]omments expressing disapproval or criticism of the Government with a view to obtaining a change of government by lawful means without any of the above.” [para. 17]