The Supreme Court has agreed to hear on Monday a petition by Indore-based cartoonist Hemant Malviya seeking anticipatory bail in a case filed against him for sharing allegedly “obscene” cartoons on a social media site against the Rashtriya Swayamsevak Sangh (RSS) and Prime Minister Narendra Modi. The Supreme Court of India. (File Photo)

The plea was mentioned for urgent listing on Friday before a bench of justices Sudhanshu Dhulia and Joymalya Bagchi.

Advocate Vrinda Grover, who appeared for Malviya, said that the Madhya Pradesh high court rejected his anticipatory bail plea on July 3 and has virtually condemned him for crossing the threshold of free speech and expression by sharing the alleged offensive caricatures.

She said that the caricatures were of 2021 and Malviya is sought to be prosecuted on a complaint filed by RSS activist and lawyer Vinay Joshi in May this year.

While the bench was inclined to post the matter on Tuesday, Grover said that the petitioner apprehends arrest following the dismissal of his anticipatory bail plea by the high court.

The complaint against Malviya said that he had published the cartoon on Facebook which were “offensive”, “obscene”, and “indecent”. The complainant Joshi said that the posts had hurt Hindu religious sentiments and caused damage to RSS’s image.

Police registered a case under sections 196, 299, and 352 of the Bharatiya Nyaya Sanhita (BNS) for actions allegedly harming communal harmony and hurting religious feelings. Besides, he was also charged under provisions of the Information Technology Act.

Grover said that the offences under which Malviya is booked are punishable with a maximum punishment of three years. She said that the high court while refusing anticipatory bail has overlooked the judgment of the top court in Arnesh Kumar v State of Bihar (2014) case, which directs police not to unnecessarily arrest persons accused of offences which are punishable with seven years or less sentence.

She further cited the recent judgment in Imran Pratapgarhi v State of Gujarat case, where the top court quashed a criminal case lodged against the Congress member of Parliament (MP) for sharing a poem on social media, which police claimed had incited hatred and threatened communal harmony. The court stepped in defence of the right to freedom of speech and expression and said, “75 years into our Republic, we cannot be seen to be so shaky on our fundamentals that mere recital of a poem or for that matter, any form of art or entertainment, such as, stand-up comedy, can be alleged to lead to animosity or hatred amongst different communities.”

Grover told the court that the high court had failed to apply these decisions in the present case. The high court had said, “The conduct of the anticipatory bail applicant in depicting the RSS, which is a Hindu organisation, along with the country’s PM in the aforesaid caricature, coupled with his endorsement of a rather demeaning remark, dragging unnecessarily the name of Lord Shiva in the comments tagged to it, is nothing but the sheer misuse of speech and expression as enshrined under Art.19(1)(a) of the Constitution, and falls under the definition of offence as contended by the complainant.”

The high court further observed, “It is apparent that the applicant’s aforesaid act is deliberate and malicious intended to outrage religious feelings of the complainant and the public at large by insulting its religion, which is prejudicial to the maintenance of harmony in the society.”

The case against Malviya was filed before Lasudia police station in Indore on May 21, pursuant to which even the trial court had refused him pre-arrest bail on May 24.