"Cartoonists Entitled To Freedom Of Expression": Kerala High Court Quashes Case Over Malayala Manorama Caricature 'Insulting' National Flag

The Court thus quashed proceedings initiated against the Printer and Publisher, Editorial Director, Managing Editor, Editor and Chief Editor of Kerala news daily 'Malayala Manorama', under Section 2 of Prevention of Insult To National Honour Act, 1971 for allegedly insulting the National Flag.

The specific case was that Malayala Manorama, in connection with the 70th Independence Day celebrations, published a caricature depicting Mahatma Gandhi and the Indian flag, with the top side of saffron portion of the flag outlined with a black line.

Justice P.V.Kunhikrishnan observed that the small picturization of a cartoonist creates powerful visual commentary that engages, provokes and inspires the audience. The Court said:

“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. The fundamental right allows them to express their opinions, ideas, and creativity through cartoons, caricatures, and other forms of visual art. However, this freedom is subject to reasonable restriction under Article 19(2) of the Constitution, which permits the State to impose limitations on freedom of expression in the interest of sovereignty and integrity of India, security of the State, friendly relation with foreign States, public order, decency or morality, contempt of court, defamation, incitement to an offence etc.”

The complaint was filed by the Area Committee General Secretary of the Bharatiya Janata Party. The petitioners had approached the High Court seeking quashing of FIR and Final Report. 

Petitioners submitted that Malayala Manorama has a tradition and they would never disrespect or dishonour the National Flag or Mahatma Gandhi. It was stated that the cartoonist was expressing his freedom as an artist to celebrate Independence Day by using a caricature.

The Court found that a caricature involves exaggerating or distorting the physical features, personalities, or characteristics of individuals to create humorous, satirical, or critical effects. The Court noted that a cartoonist has the power to speak volumes through a small caricature.

The Court stated that the term “insult” is an essential ingredient to attract an offence punishable under Section 2 of the Prevention of Insult To National Honour Act. Section 2 prescribes punishment of up to 3 years imprisonment with a fine or both for causing Insult to the Indian National Flag and Constitution.

The Court noted that since the term 'insult' was not defined in the Act, the Court must refer to its ordinary meaning. It stated that 'Insult' is generally understood as derogatory or demeaning remarks, comments, or actions intended to offend or humiliate someone, undermine their self-esteem or dignity, provoke anger or hostility, or display contempt or disrespect.

“The Act 1971 is to prevent insults to national honour which means, the intention on the part of a person to insult the national honour is the main ingredient to attract the provisions of Act 1971. Unless there is a deliberate action with an intention to insult the national honour, the provisions of the Act 1971 is not attracted”, stated the Court.

The Court stated that the cartoon was published in Malayala Manorama along with articles on Indian Independence to celebrate the Anniversary of Independence Day. The Court appreciated the Cartoonist and Malayama Manorama and stated that the caricature depicts a beautiful picturization of the 70th Independence Anniversary.

The Court went on to say that the complaint was filed without considering the positive impacts of the Independence Anniversary celebration edition of the newspaper. It called out the complaint as hypercritical and stated that we should all refrain from focusing solely on the negatives.

The Court stated that Malayala Manorama had no intent to insult National Flag or Mahatma Gandhi. The Court went on to state that an offence under Section 2 of the Act would be attracted only when an act was committed with an intent to insult the National Flag.

It concluded, “Hence, the offence is attracted when a person in any public place or in any other place within public view burns, mutilates, defaces, difiles, 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 with an intention to insult it. The Act itself is made to prevent insults to national honour.”

As such, the Court allowed the petition and quashed the proceedings against the petitioners.

Counsel for Petitioners: Advocate Millu Dandapani

Counsel for Respondents: Advocate Prathap SRK, Public Prosecutor Sangeetharaj N R

Citation: 2024 LiveLaw (Ker) 485

Case Title: Mammen Varghese v State of Kerala

Case Number: CRL.MC NO. 4384 OF 2019

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