JOIN USThe right to freedom of expression loses its meaning if it does not include the right to offend.
Mahatma Gandhi was against obeying unjust laws. He broke such laws and admitted to doing so in the court. Like him, renowned American human rights activist A J Muste believed that “unjust laws and practices survive because men obey them and conform to them. This they do out of fear. There are things they dread more than the continuance of the evil.” Section 124 of the Indian Penal Code (IPC) is one such law under which punishment up to life imprisonment can be awarded for sedition or spreading disaffection.
Cartoonist Aseem Trivedi was arrested by the Mumbai police under this section and some other laws as he made a cartoon of the national emblem which offended some people and was taken to be an insult to the national emblem. Trivedi was active in the Anna movement. Displaying guts and taking a strong moral position he refused to hire a lawyer to defend himself and did not apply for bail either as he said that the charge of sedition was malicious and draconian. However, he was granted bail by the Bombay high court on a PIL. The right to freedom of expression loses its meaning if it does not include the right to offend. Of course, it does not mean a licence to use vituperative and scurrilous language against anyone.
There have been consistent attacks on the right to freedom of expression by the government which has no qualms in invoking the antediluvian law made by the colonial government with an ulterior motive to silence the voice of protest. Ironically, the same law is being used to slap the charge of sedition against anyone who musters the guts to dissent. The right to freedom of expression is a fundamental right guaranteed by the Constitution and the Supreme Court clarified the position in Kedar Nath Singh v. State of Bihar (1962) that one can be accused of sedition only if there is an incitement to violence. However, this ruling is being observed in defiance. The British government had a clear agenda that the voices of protest and dissent must be crushed with an iron hand. That is why it did not believe in the freedom of the press. A cursory glance at the growth of the press in India makes it clear how the colonial government tried to gag the press all the time.
‘Bengal Gazette’ was the first newspaper to appear from Calcutta in 1780. James Augustus Hicky was the publisher. The exploits of the wife of Warren Hastings who was then in charge of the Bengal Presidency, were the subject of gossip among the English-speaking gentry of Calcutta. Hicky made bitter attacks on Mrs Hastings in his newspaper. Hastings retaliated immediately and prohibited its circulation through the General Post Office. As there was no law regarding the press, Hastings instituted many suits against Hicky which finally led to closure of the newspaper. Hicky also published in his paper that an attempt was made to assassinate him by two armed Europeans.
Strict vigil
The next editor to face the wrath of the government was William Duane who was tortured by the government of Sir John Shore. On December 27, 1794 Duane got a request from Shore’s private secretary, Captain Collins, to come to Government House. Taking it to be an invitation for breakfast with the governor-general, he went there. He was baffled when he was told that he must consider himself a state prisoner. He was soon surrounded by soldiers with drawn bayonets. Duane was flummoxed when he saw through an open door that the governor-general and two members of the Supreme Council were watching the proceedings. Duane was kept in the fort for three days under strict vigil and then was deported to England where he was set free without any explanation. In 1799, Lord Wellesley imposed severe restrictions on the press.
It was such an experience that the Indian National Congress, after being founded in 1885, demanded to make the freedom of the press a fundamental right. Surprisingly, when the Constitution was framed the Congress leaders did not bother to remember that demand. When some members raised this demand in the Constituent Assembly B R Ambedkar replied that citizens were being granted the fundamental right of the freedom of speech and expression, and journalists were citizens who would enjoy this freedom. In the US, the freedom of the press was made a fundamental right by the first amendment even though citizens enjoyed the freedom of speech. However, the Indian Supreme Court, by its interpretation, has made the freedom of the press a fundamental right under Article 19(1) of the Constitution which guarantees the right to speech and expression.
Cartoons are meant to be enjoyed which lampoon the shortcomings or defects of the system or of powerful individuals. It is prevalent in some form or the other since the pristine age. In the stone age, people made paintings of violent animals in caves and also that of festivity of chasing these animals. But the word ‘cartoon’ evolved at the time of painters Leonardo da Vinci and Raphael. They made a rough drawing of the paintings on a thick paper when they had to paint tapestry or murals which is called ‘lay out’. This thick paper was called ‘karton’ in Italian and the rough drawing ‘cartoon’. The beginning of modern cartoon and caricature can be traced back to 1720 when in London Liliyang Hogarth started it professionally. Since then kings, queens, heads of states and governments among others have been the butt of ridicule.
Aseem’s cartoon may be offensive or disgusting if it insults the national emblem, but it cannot be called seditious. Freedom of expression is meaningless if it does not give the right to offend and we must defend the right to offend.