Case Summary and Outcome

An Indian High Court dismissed a criminal complaint against a newspaper brought under the Prevention of Insults to National Honour Act for publishing a cartoon of the Indian flag and Mahatma Gandhi. After the newspaper had published the cartoon in recognition of India’s Independence day, a local member of the ruling political party filed the criminal complaint on the grounds that the use of a black outline on the flag dishonored the flag. The Court found that the cartoon sought to celebrate the occasion and that there was no intention to insult the national flag. It characterized the prosecution’s claims as a “far-fetched imagination” and emphasized the significance of artistic expression, affirming that “cartoonists are also part and parcel of the press and media” entitled to the freedom of expression under the Indian Constitution.

Facts

On August 15, 2017, an Indian daily newspaper from Kerala, the Malayala Manorama, published a cartoon depicting the national flag of India and the “Father of the Nation”, Mahatma Gandhi. The cartoon had the number “70” in the flag and was published on occasion of the 70th Independence Day of India. The Indian flag consists of three stripes in the colors of saffron, white and green. In the cartoon, the top side of the saffron band was outlined with a black line as part of the “70” and the outline of Gandhi.

On August 23, 2017, Biju Kurup, a politician and General Secretary of Bhartiya Janta Party (BJP) Edakkad Area Committee, Kozhikode (Kerala) filed a criminal complaint against the newspaper before the Sub Inspector of Police, Nadakkavu. Kurup alleged that the cartoon caused insult to the national flag and constituted an offence under section 2 of the Prevention of Insults to National Honour Act, 1971 (the Act). Kurup submitted that the black colour in the cartoon was purposefully used to dishonor the National Flag.

Section 2 of the Act states that “whoever in any public place or in any other place within public view burns, mutilates, defaces, defiles, disfigures, destroys, tramples upon or otherwise shows disrespect to or brings into contempt (whether by words, either spoken or written, or by acts) the Indian National Flag or the Constitution of India or any part thereof, shall be punished with imprisonment for a term which may extend to three years, or with fine, or with both.”

The police registered a case against Mammen Varghese, the printer and publisher of the Malayala Manorama; Mathew Varghese, the newspaper’s Editorial Director; Jacob Mathew, its Managing Editor; Philip Mathew, an editor; and Mammen Mathew, the Chief Editor.

Varghese and the others filed a Criminal Miscellaneous Case in the High Court of Kerala requesting the dismissal of the criminal complaint filed against them by the police.

Decision Overview

Justice P.V. Kunhikrishnan of the High Court of Kerala (Ernakulam Bench) delivered the decision. The central issue for the Court’s consideration was whether the newspaper should be held criminal liable for publishing the cartoon.

Varghese argued that the newspaper’s intention was not to disrespect the national flag and that the black color on the top of the saffron band was used to depict the top portion of the numbers “7” and “0” and the image of Gandhi. He submitted that the newspaper published articles and statements by famous people to celebrate the 70th Independence Day of India and India’s achievements. In the absence of any mala fide intention, Varghese argued that no case could be established under section 2.

The Public Prosecutor requested the dismissal of the Criminal Miscellaneous Case on the grounds that a prima facie case was disclosed under section 2.

The Court examined whether intention is necessary for the applicability of the Act and commission of an offence under section 2. It noted that the Act starts with the sentence “An Act to prevent insults to national honour” and observed that the Act therefore aims to prevent insults to national honour. As the Act does not define the term “insult,” the Court relied on its ordinary meaning, which includes “derogatory or demeaning remarks, comments or actions intended to offend or humiliate someone, lower someone’s self-esteem or dignity or provoke anger or hostility or show contempt or disrespect”. [para. 9] The Court emphasized that for the provisions of the Act to apply, there must be a deliberate action with an intention to insult the national flag and that without such intent, the Act’s provisions are not triggered.

The Court analyzed whether the newspaper published the cartoon intending to disrespect the Indian national flag. The Court referred to the facts of the case, noting that the cartoon in question depicted Gandhi, alongside the flag in commemoration of the 70th anniversary of Indian Independence on August 15, 2017. The Court highlighted that the top portion of the number “7” included the National Flag, while the “0′”was illustrated as Mahatma Gandhi along with a small curved line connecting the two, symbolizing Gandhi carrying the flag.

The prosecution’s claim that the black border to the saffron band of the National Flag intended to dishonour the National Flag was dismissed as a “far-fetched imagination” by the Court. [para. 10] Calling the cartoon “one of the beautiful picturisation of the 70th Independence Anniversary”, the Court concluded that the cartoon conveyed the message of the Independence anniversary. [para. 10] It noted that the newspaper’s editorial and Metro Manorama edition highlighted the significance of India’s independence and its achievements over 70 years, reinforcing that the newspaper intended to celebrate the occasion rather than offend.

The Court described the prosecution as “researching to find out negatives” instead of focusing on the positive aspects of the 70th Independence Anniversary celebration edition. [para. 11] The Court referred to the Malayalam term “ദോഷൈകദൃക്ക്” (Doshaikadrik), which means a person who only sees the evil side of things and likened it to the English term”’hypercritical.” [para. 11] The Court also referenced a scene from the Malayalam movie Njan Prakashan by director Sathyan Anthikad, where a character, despite enjoying a perfect feast, criticizes the lack of vegetable pieces in the “Sambar” (a vegetable curry in South India); this behaviour, the Court said, reflects the mindset of a “Doshaikadrik.” The Court observed that this tendency exists within all of us, and we must strive to control it.

In examining whether cartoons fall within the ambit of the freedom of expression guaranteed under Article 19 of the Indian Constitution, the Court appreciated the art of caricature which can be used by the artists to “create powerful visual commentary that engages, provokes, and inspires audiences”. [para. 6] It noted that this involved “exaggerating and distorting the physical features, personalities, or characteristics of individuals often for humorous, satirical, or critical effect” and that exaggeration, distortion, and simplification are key elements of this art form. [para. 6] The Court added that the art of caricature requires different skills including observation, creativity, technical skills, and knowledge of current events and cultural conflicts which can be used to make the subject appear “ridiculous, ironical, or thought-provoking”. [para. 6]

The Court acknowledged India’s “rich tradition of cartooning” by highlighting important contributions made by cartoonists like R.K. Laxman, Shankar and O.V. Vijayan. [para. 7] It mentioned that Pandit Jawaharlal Nehru, the First Prime Minister of India, encouraged Shankar, to “continue his sharp criticism through his art” and appreciated his “wit and insight” and the Court highlighted Nehru’s beliefs that cartoons “played a vital role in a democratic society holding leaders accountable and sparking important discussions”. [para. 7]

The Court concluded that “cartoonists are also part and parcel of the press and media, and the cartoonists are also entitled to the freedom of expression guaranteed by Article 19(1)(a) of the Constitution”. [para. 7] It highlighted cartoonists’ fundamental right to “express their opinions, ideas, and creativity through cartoons, caricatures, and other forms of visual art”. [para. 7] While appreciating the beauty of cartoons and cartoonists, the Court remarked that a simple cartoon can convey a powerful message, often more effectively than lengthy written articles. The Court accepted that freedom is subject to certain reasonable restrictions under Article 19(2) of the Indian Constitution like sovereignty, public order and decency.

Accordingly, the Court concluded that the cartoonist caused no insult to the national flag or the “Father of the Nation” and found that “the prosecution is absolutely unnecessary”. [para. 12] It described the case as “an abuse of the process of the court”. [para. 13] Accordingly, the Court allowed the Criminal Miscellaneous Case and quashed the criminal complaint filed against them.