Unjustified penal action
The cartoons by Aseem Trivedi may be starkly repulsive and indulge in exaggerated satire, but they cannot be termed seditious.
The harassment of the cartoonist clearly shows a lack of “sense of lawâ€, says MADABHUSHI SRIDHAR.
For most readers the cartoons against corruption by Aseem Trivedi may not be in good taste, some even repulsive, but under no circumstances can they be seditious, defamatory, or insulting. The political rulers and the police are acting on a complaint which appears to be emotional and lacking in a “sense of law”. Arresting him for drawing a critical cartoon is abuse of power and also undemocratic.
His cartoons could be, at the most, exaggerated satire, an over-stretched imagination but certainly not criminal. Before acting on a complaint the police are expected to apply their mind to locate prima facie criminality in the content of the cartoon. Recognising the possibility of lack of such analysis at that level, judicial examination is provided for in procedure codes. It is unfortunate that even the magistrate courts have functioned in a bureaucratic style in this case. Now it is for the people to see whether the cartoonist can be penalized for his work.
“Corruption Triumphs”: Instead of three lions of Ashoka Pillar, Aseem Trivedi drew three wolves oozing out blood, and altered “Satyameva Jayate” (Truth alone triumphs) into “bhrashtameva jayathe” (Corruption alone triumphs). If it is considered seditious, i.e., spreading hatred against the nation, every person who is charged with corruption should be sent to jail too for “sedition”. Drawing a cartoon or writing an article resulting in whatever serious meaning it may communicate, cannot not be considered “seditious”. Trivedi’s cartoons reflected the agitated mind of a young man who was seriously concerned about this country.
“Kasab & Constitution”: Another cartoon of his which was part of the banned website, Cartoons against corruption, depicted Kasab who has been convicted for terrorism. It is apparently repulsive, but the cartoonist wanted to know who facilitated the defiling of the Constitution in reality. It is a critical remark against our system of governance which helped Kasab and nine other terrorists to sneak into India. Several sincere police officers fell to the bullets of terrorists, but in reality the substandard bullet proof jackets and helmets failed to save them and thus helped the terrorists. Without the support of internal corruption, the external terrorism would have not caused such a heavy loss of life in the Mumbai attacks. Such corrupt administration needs to be questioned. In his two cartoons, where is the insult to the Constitution or the National Symbol? His dig (in the Ashoka Pillar cartoon) was at the politicians and bureaucrats who turned the national symbols into national signs of danger. Under no circumstances can this be treated as insult to the Constitution or the symbol. If original symbols are insulted with a malicious intention, it could be an offence under Section 2 of the Prevention of Insult to National Honour Act 1971 which punishes “whoever in any publication 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”. These cartoons of Aseem do not fall into the scope of criminality under this law.
Ridiculing Parliament edifice: In another cartoon Aseem presented the edifice of Parliament as the base of a commode and in the other it was connected to several toilets from where sewage enters the Parliament building. One may not like it, but the cartoonist wanted to express his serious concern over the kind of people entering Parliament. Calling it “the dirty picture of India”, Aseem drew another cartoon which presented an attempt to gang rape a woman draped in tricolour, while a politician, a bureaucrat, and a devil symbolising corruption surrounded her, and the politician called: “come on hurry up”. It is in bad taste, but does not deserve the time and attention of the nation through this extreme process of jailing and prosecuting the cartoonist. It is not only misuse of power but also criminal abuse of the police force’s time and energy. With these cartoons, Aseem Trivedi is criticising the system which is well within the ambit of freedom of speech and expression.
150-year-old draconian provision: The Indian Penal Code contains certain penal provisions created to protect the British colonial regime and suppress with iron hand any rebellion or agitation for freedom. Any critical remark or comment against the rulers was considered seditious and treacherous.
Gandhi’s comment: “Affection cannot be manufactured or regulated by law,” said Mahatma Gandhi when the British rulers charged him with sedition. He described Section 124A as the “prince among the political sections of the Indian Penal Code designed to suppress liberty of the citizen.” For writing two articles in Young India, the editor-writer, Mahatma Gandhi, suffered six years’ imprisonment. Earlier Bala Gangadhar Tilak had been tried twice for sedition.
Sedition politics: Prime Minister Jawaharlal Nehru was vociferous in opposing this draconian section. He told Parliament in 1951 that he found Section 124A “highly objectionable and obnoxious.” “The sooner we got rid of it the better,” was his opinion of the broad and inexact provision that punishes those who, by use of words, signs or visible representation, “bring into hatred or contempt” or “excite disaffection” towards the government with a maximum of life imprisonment. Not only Nehru, but also M. Veerappa Moily, who as Law Minister in 2011, wanted a review and removal of this section. The Congress, which fought for freedom braving sedition charges a century ago, now prefers to use it against its political opponents and journalists. Dr. Binayak Sen, civil rights activist, was convicted by a Sessions Court under Section 124A for his alleged links with a Maoist ideologue, and a sedition case was registered against writer Arundhati Roy over a speech she made in Kashmir. The Supreme Court had to come to the rescue of Binayak Sen by granting him bail saying: “no case of sedition has been made out”.
The Apex court brought out the distinction between merely sympathising with a movement and committing an offence under Section 124A. Soon after this order, Mr Moily said that the Law Commission of India would be asked to take a fresh look at it. The complainant against Aseem Trivedi may not have read these developments or properly understood what sedition is. What happened to those who are supposed to apply their mind?
Judicial interpretation: Section 124A was defined as an offence, exciting disaffection against the state; it was replaced with “sedition” in 1898. The English law’s meaning of sedition is basically libel of government. In the case of Bala Gangadhar Tilak (ILR (1898) 22 Bom 112), the court held that if a person excited or attempted to excite feelings of disaffection great or small, he would be guilty under this section. This meaning was later was confirmed by the Privy Council. But in Niharendu Majumdar’s case (AIR 1942 FC 22 (26)), the Federal Court gave a liberal meaning to “sedition”: “The acts or words complained of must either incite to disorder or must be such as to satisfy reasonable men that is their intention or tendency.”
But its ordinary English meaning is “stirring up rebellion against the government”, as stated by the Supreme Court in the Kedarnath case. The Supreme Court explained the meaning of Section 124A in Kedar Nath Singh vs. State of Bihar (AIR 1962 SC 955) case saying that sedition did not apply to mere “criticism of government action, however strongly worded.” The operation of the provision, the five-member bench ruled, would be limited to cases where what is said or spoken incites violence and public disorder. When two officers of the Punjab Education Department raised the slogan “Khalistan Zindabad, Raj Karega Khalsa,” they were convicted of “sedition”. But the Supreme Court set it aside (1995(3) SCC 214), saying the court should look at whether it had led to a consequence detrimental to the nation's unity and integrity. It pointed out that Section 124A should not be used to violate freedom of expression. The prosecution has to show proof of harm resulting from the comment or the cartoon. The principle of harm alone permits curbs on expression.
Abandoned by democratic societies: The United States repealed laws such as the Sedition Act of 1918, and reduced the Smith Act 1940 into a dead letter followed by the directive of that country’s Supreme Court. After profusely using it against the freedom fighters of India, the British stopped using sedition charges. It was last used in 1947. Recently UK abolished offences of sedition and seditious libel. The sections of the Indian Penal Code that deal with “conspiracy to wage war against the government” (121A) and “sedition” (124A) are draconian in terms of their definition and ambit and carry a disproportionate quantum of punishment. Section 121A was not a part of the original IPC of 1860: it was inserted by an amendment in 1870. After Independence it was amended in 1951, just to replace “British India” with “state”. In order to punish the nationalist leaders who were fighting against the Government of India and the rulers of princely states, the British brought in an Ordinance in 1937. It amended the IPC to add to the definition “local government,” expanding the power to grant punishment for conspiracy against any government.
The rulers in India find this penal provision a convenient weapon to silence dissent and criticism. Recently in Andhra Pradesh a Communist leader was charged with sedition for his critical remarks against the government.
Offensive and menacing: Section 66 of the Information Technology Act has been misused to charge Mr Trivedi with sending messages that are “grossly offensive or menacing in character”. A police officer might find every critical comment or cartoon offensive or menacing. For a corrupt ruler, criticism against his corruption is offensive and also menacing. Does it mean that the corrupt will go unpunished but those who draws cartoons on them will be sent to jail?
