NATIONAL LAW UNIVERSITY ODISHA,CUTTACK

INDIAN PENAL CODE - II

RSPONSE PAPER – FROM ASEEM TRIVEDI’S CARTOON

TO M.F HUSSIAN’S PAINTING : HURTING RELIGIOUS
SENTIMENTS AND SEDITIOUS EXPRESSION

SEMESTER – V

SUBMITTED TO SUBMITTED BY

DR. KUNTIRANI PADHAN PARUL PRIYA NAYAK

(Research Associate cum Teaching Assistant) (18BA074)

DR.ANUP KUMAR PATNAIK

“Aseem Trivedi is an Indian political cartoonist and activist, known for his anti-corruption
campaign Cartoons Against Corruption. He is a founder member of Save Your Voice, a
movement against internet censorship in India. He is the recipient of "Courage in Editorial
Cartooning Award 2012" of US based Cartoonists Rights Network International”.“In
September of 2012, political cartoonist Trivedi was charged with sedition by the Indian
government. A year earlier he had participated in a country-wide anti-corruption movement,
drawing a series of rudimentary cartoons that mocked India's national symbols”. India's 2010
anti-corruption movement with his "Cartoons Against Corruption" series, for which the
government suspended Aseem's website and charged him with sedition, breaching the IT act,
and "insulting" national” symbols”.

“In same case of“Hussian’s painting , I must admit I simply adore most of Husain's works. Yet,
genius is also not always flawless. He painted Goddesses from Hinduism in nude forms leading
to controversies. In his defence, he called it artistic freedom and said he meant no disrespect to
the deities. Fair point. But his defence was incoherent . He paints most of the prominent female
deities, worshiped by nearly a billion population on the planet, in nude forms and claims
innocence. This is an untenable argument”.

“All M.F Husain nude paintings related to Hinduism only because Maqbool Fida Husain, 'so-
called' greatest living artist of Indian origin (Indian origin because he is a citizen of Qatar now,
no more Indian!) has been in limelight ever since he depicted Hindu gods and goddesses in
'compromising' positions and even having animal sex. Some Hindu outfits and individuals
demonstrated against this and even filed lawsuits in courts! There are dozens of cases filed
against M F Husain and that is the reason he has given up the Indian citizenship and taken up
the one offered by the Qatar king. Our 'liberal' and 'forward minded' democrats have pleaded
Husain 'Not Guilty' in the name of art and freedom of expression”.

“Mr. Husain imagined and painted nude gods and goddesses of Hindu religion only? And why
were the paintings of his own daughter and other Muslim figures which he drew were all fully
clothed? It looks like Mr. Husain's obsessiveness with nudity awakens only when he sees Hindu
Godesses! And he is all respectful when it comes to Muslim figures? Art should have freedom,
expressions should have freedom, agree my boy - agree with you! But, then why is there no
painting in which the 90+ year old Husain has sculpted a Muslim figure in nudity or in a
compromising position with the Prophet Mohammed”?
“Why is it that only when it comes to someone attacking Hindu mythology and religious beliefs,
our own Hindu journalists and so-called democrats and social workers talk of peace and
freedom and all crap? But if someone is attacking Muslims in our country, the same guys will
go against those culprits. Every single person in the media had gone against Narendra Modi for
his 'alleged' role in the Gujarat riots during which about a thousand Muslims were killed in
mass mob riots. These guys forgot the root cause of these riots in which over 300 Hindus were
killed in the train in Godhra! Where were these social workers and democrats then when Hindus
were being killed”?

A direct attack on Hindu belief!

“M F Husain's paintings are a direct attack on Hinduism and Hindu belief. Some may even
argue that our own Ajanta and Ellora have arousing sculptures of Hindu demigods! True, but
none of them are named after any god or goddess. None of them has a naked Saraswati, which
Mr. Husain dared to imagine and even paint for public viewing to showcase how creative his
stupid little brain is! Saraswati, according to Hindu culture, is the goddess of knowledge, music
and art. So, Mr. Husain, an artist, drew the nude painting of the goddess of art herself! What
kind of artistic freedom is this? You think of somebody in nudity and you call it art? But I call
it sex or for that matter, the productivity of a psycho mindset, if you're thinking of your guru
or your god in that position! Saraswati is not just a teacher but a goddess, teacher of all teachers!
Freedom comes with great responsibility and mind you but no painter or artist on this earth has
any right to make fun out of someone or some religion's culture and belief. Just why is there
no naked Prophet Mohammed painted by the great Husain”?

On the contrary, all the Muslim figures he has painted are fully clothed! Prophet Mohammed's
daughter is fully clothed. M F Husain's own daughter and mother are well clothed. Mother
Teresa, for that matter, is well clothed. But all the Hindus in his paintings are naked! Wow.
What do you call this? Some kind of artistic freedom? You are kidding yourself if you call this
an artistic freedom. Just look at those paintings again, yes now, take a bow, do it! All Hindus
are painted naked by Mr. M F Husain and not a single Muslim lady is without clothes.

Section 124 A of the Indian Penal Code deals with Sedition and while there have been demands
in the past to scrap this section, it has remained.

Like several other laws, Law of Sedition is a 1860 law. Gandhi, Tilak etc. were victims of this
law during the British Raj.
“It is important to note that under the Indian law of sedition, the events at the public meeting,
even if completely true, do not even come close to establishing an offence. In Kedar Nath
Singh’s Case, 5 judges of the Supreme Court – a Constitution bench – made it clear that
allegedly seditious speech and expression may be punished only if the speech is an ‘incitement’
to ‘violence’, or ‘public disorder’. Subsequent cases have further clarified the meaning of this
phrase. In “Indra Das v. State of Assam”1 and “Arup Bhuyan v. State of Assam”2, the Supreme
Court unambiguously stated that only speech that amounts to “incitement to imminent lawless
action” can be criminalized. In Shreya Singhal v. Union of India, the famous 66A judgment,
the Supreme Court drew a clear distinction between “advocacy” and “incitement”, stating that
only the latter could be punished”.

“Therefore, advocating revolution, or advocating even violent overthrow of the State, does not
amount to sedition, unless there is incitement to violence, and more importantly, the incitement
is to ‘imminent’ violence. For instance, in Balwant Singh v. State of Punjab, the Supreme Court
overturned the convictions for ‘sedition’, (124A, IPC) and ‘promoting enmity between
different groups on grounds of religion, race etc.’, (153A, IPC), and acquitted persons who had
shouted – “Khalistan zindabaad, Raj Karega Khalsa,” and, “Hinduan Nun Punjab Chon Kadh
Ke Chhadange, Hun Mauka Aya Hai Raj Kayam Karan Da”, late evening on 31 October 1984,
i.e. a few hours after Indira Gandhi’s assassination – outside a cinema in a market frequented
by Hindus and Sikhs in Chandigarh”.

“Thus, words and speech can be criminalized and punished only in situations where it is being
used to incite mobs or crowds to violent action. Mere words and phrases by themselves, no
matter how distasteful, do not amount to a criminal offence unless this condition is met”.

“We have right to pleasant speech. We have the right to be social, religious and cultural
conformists. Anything beyond that is punishable one way or the other, or as Indians choose to
put it, ‘Reasonable restrictions’. One toe out of the line and the consequences can vary from
being simply trolled, abused and fatwa-ed to being physically attacked or killed. And after you
are through that alive you will most likely be arrested and charged with offending sentiments
and provoking disharmony or some other shit. There are ample amount of laws in place to bully
non-conformists of any kind to silence”.

1
Indra Das v. State of Assam, (2011) 3 SCC 380
2
Arup Bhuyan v. State of Assam, (2011) 3 SCC 377
Most Indians don’t even understand what ‘free speech’ or a ‘right’ is to begin with, and that
includes educated, middle class Indians. They don’t put much stock in democratic values in the
first place and many - perhaps a significant majority - would happily trade democracy for a
strong authoritarian leader who they believe will take their country back to some mythical
golden era. India is an extremely insecure and wounded civilization, suffering from strong
victim complex, living with a confused identity and the need to jealously defend its 2 penny
pride and sense of self-importance. Therefore its people are extremely thin skinned and
overreact to the slightest of slights. And this is getting worse with rise of nationalism, not that
it was much better earlier.

The concept of ‘natural right’ or ‘inalienable right’ is highly alien to India and most of Eastern
civilization. We are ‘honour’ based societies where individual’s conduct and life choices are
dictated, monitored and policed by the collective. In such societies, you are not being respectful
enough unless you let others dictate and censor you. That’s the reason, for example, Hindus
feel disrespected and attacked when a random unknown person eats beef in the privacy of his
home and deem it fit and just to punish him. That’s the reason Village heads/ Panchayats get
mad at people, who happen to be consenting adults, marry outside their caste or religion.
Individuals exist only as a part of a block, a clan, and rights are ‘granted’ to the individual, and
can be taken away, by the will of the clan, rather than being present naturally and inherently.
In these societies any slight that wounds the ‘honour’ of a high ranking person or a clan or a
community is seen as a grave crime and it becomes incumbent upon that person or community
to retaliate aggressively and avenge the dishonour, even if that means going to jail. Not doing
so is seen as cowardice and weakness.

In western civilization, its exactly the opposite. Getting violent over petty insults is actually
seen as a moral weakness rather than sign of strength or manliness. Western civilization gives
utmost importance to individual liberty and rule of law. The state is restricted from defining
what is moral or orthodox or acceptable. The rights of an individual cannot be demarcated by
the collective might. Therefore western, especially American, definition of free expression
generally precludes the right to offend, challenge and ridicule even the most deeply held beliefs
and symbols, as long as its non-violent. ‘Provocation’ is not seen as an excuse for retaliatory
violence, and therefore not an offense (unlike here, where we have several laws that criminalize
‘outraging sentiments’ or contempt of court or insults to religious figures). Quite opposite to
‘honour’ based societies, not getting provoked to violence is seen as morally and legally
incumbent. Every mentally sound individual is assumed to be capable of self-control, rational
choices and making conscious decisions and therefore are held accountable for their own
actions. For instance if someone drew a disparaging cartoon of your favourite imaginary friend
or sky daddy and you physically attack him, the blame squarely lies on you as you chose to be
violent, when there were other non-violent ways of expressing your disapproval. The cartoonist
wouldn’t be held responsible for ‘outraging your sentiments’ or making you get violent. Thus
‘hurting sentiments’ is by no means a ‘reasonable restriction’.

“The right to freedom in Article 19 guarantees the Freedom of speech and expression, as one
of the Fundamental Right. This right is subject to certain reasonable restrictions (Article 19
clause 2) which are as follows””

1. “security of the State”,

2. “friendly relations with foreign States”,
3. “public order”,
4. “decency and morality”,
5. “contempt of court”,
6. “defamation”,
7. “incitement to an offence”, and
8. “sovereignty and integrity of India”.

“The Indian Penal Code has several clauses that make it contingent upon the person
“expressing” himself or herself not to hurt sentiments or cause public discord, something that
is open to interpretation. The extensive Constitutional amendments carried out in 1972 replaced
section 153 of the Indian Penal Code with sections 153 A and 153 B. The relevant sections are
153A and 153 B of the IPC which penalise “promoting enmity between different groups on”
ground of religion, race, place of birth, residence, language, etc.,” and committing acts
“prejudicial to maintenance of harmony”; and sections 295, 295A and 298 which deal
exclusively with “religious harmony””.

“Reasonable restriction contemplated under the Indian Constitution brings the matter in the
domain of the court as the question of reasonableness is a question primarily for the Court to
decide. {Babulal Parate v. State of Maharashtra [(1961) 3 SCR 423]”3}.

“The State has a duty to protect itself against certain unlawful actions and, therefore, may enact
laws which would ensure such protection. The right that springs from Article 19(1)(a) is not
absolute and unchecked. There cannot be any liberty absolute in nature and uncontrolled in

3
Babulal Parate v. State of Maharashtra [(1961) 3 SCR 423
operation so as to confer a right wholly free from any restraint. Had there been no restraint, the
rights and freedoms may become synonymous with anarchy and disorder. Ref.: State of West
Bengal Vs. Subodh Gopal Bose [AIR 1954 SC 92]”4

“Rights, restrictions and duties co-exist. As, on the one hand, it is necessary to maintain and
preserve the freedom of speech and expression in a democracy, there, on the other, it is also
necessary to place reins on this freedom for the maintenance of social order. The term `social
order’ has a very wide ambit. It includes `law and order’, `public order’ as well as `the security
of the State’. The security of the State is the core subject and public order as well as law and
order follow the same”.

“To conclude a restriction imposed in any form has to be reasonable and to that extent, it must
stand the scrutiny of judicial review. It cannot be arbitrary or excessive. It must possess a direct
and proximate nexus with the object sought to be achieved. Whenever and wherever any
restriction is imposed upon the right to freedom of speech and expression, it must be within the
framework of the prescribed law”, as subscribed by Article 19(2) of the Constitution”.

4
State of West Bengal Vs. Subodh Gopal Bose AIR 1954 SC 92