Cartoonists are also entitled to the freedom of expression guaranteed by Article 19(1)(a)

MAMMEN VARGHESE & ORS. V. STATE OF KERELA

FACTS

The defacto complainant, who is the General Secretary of Bharatiya Janatha Party, Edakkad Area Committee filed a complaint before the Sub Inspector of Police, Nadakkavu on 2024/KER/57138 Crl.MC 4384/2019 4 23.08.2017 stating that, in a Malayalam daily dated 15.08.2017, a cartoon is published with a National Flag and the father of the Nation and the same looks like the number ‘70’.

According to the defacto complainant, the top side of saffron portion of the National Flag is outlined with a black line and this black colour is purposefully given to dishonour the National Flag. Thus, contended that there is a violation of the Act 1971.

The following were the petitioners in the case: (i) Printer and Publisher of Malayala Manorama, Kottayam (ii) Editorial Director, Malayala Manorama, Kottayam, (iii) Managing Editor, Malayala Manorama, Kottayam, (iv) Editor, Malayala Manorama, Kottayam and (v) Chief Editor, Malayala Manorama

ISSUE

Whether the offence under Section 2 of The Prevention of Insults to National Honour Act, 1971 is attracted or not?

SUBMISSIONS OF THE PETITIONER

The counsel for the petitioners submitted that the petitioners are the Printer and Publisher, and Editors of Malayala Manorama, which is one of the main Malayalam daily publishing from Kerala. The counsel submitted that Malayala Manorama has a tradition and will never disrespect the National Flag or the father of the Nation and neither the readers of Malayala Manorama would think like that.

The counsel also submitted that the Malayala Manorama published articles in connection with the celebration of the 70th anniversary of the Independence of India. According to their contention, the black colour on the top of the saffron is only to show the top portion of the number ‘7’ and ‘0’ is used to depict the image of the father of the Nation. There is no dishonour either to the father of the Nation or to the National Flag.

OBSERVATIONS AND DECISION OF THE COURT

Justice P.V. Kunhikrishna observed that one of the key elements of the art of caricature is exaggeration, which means emphasizing prominent features or traits. Another element is distortion, which means manipulating proportions, shapes, and sizes. Another element of the art of caricature is simplification which means reducing complex features to simple forms.

The 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. However, this freedom is subject to reasonable restriction under Article 19(2) of the Constitution

The Prevention of Insults to National Honour Act, 1971 was enacted by the Parliament in the 22nd year of Republic of India. The Act starts with the preamble “An Act to prevent insults to national honour”. The term ‘insult’ is not defined in the Act, thus, the Court has took the ordinary meaning of ‘insults’.

‘Insults’ as the court observed referred to 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.

The Cartoon was published in the first page of Malayala Manorama daily 15.08.2017 in connection with the 70th Anniversary of Indian Independence. The cartoon clearly conveys the message of the 70th Independence Anniversary to its readers.

The court observed that there was no intention on the part of the petitioners to insult either the national flag or the father of the Nation. The newspaper was trying to celebrate the 70th anniversary of Indian Independence with its readers and several information and articles were there in the 70th Independence Anniversary edition of Malayala Manorama.

Thus, the court concluded that the prosecution against the petitioners is an abuse of process of the court.