Supreme Court moots free speech guidelines after State flags more content by cartoonist Hemant Malviya

The Supreme Court on Tuesday said it may need to evolve a test on free speech in the context of social media, after more allegedly offensive posts by Indore-based cartoonist Hemant Malviya were brought to its attention during the hearing of his anticipatory bail plea [Hemant Malviya vs. State of Madhya Pradesh].

A bench of Justices Sudhanshu Dhulia and Aravind Kumar, which had yesterday criticised one of Malviya’s cartoons for being “inflammatory” and “immature”, was today shown screenshots of other online posts made by Malviya.

Justice Dhulia remarked that offensive speech online has become increasingly common, even among legal professionals.

“What is happening today is all kinds of offensive statements are being made. The language they use… There are some amongst the lawyer community also who are doing these things,” he said.

The Court was hearing Malviya’s plea challenging the Madhya Pradesh High Court’s order denying him anticipatory bail in connection with FIRs registered under the Bharatiya Nyaya Sanhita and Section 67A of the Information Technology Act.

According to the FIR, Malviya’s cartoon depicted a man in RSS uniform with his shorts pulled down and Prime Minister Modi administering an injection. The post also carried remarks allegedly involving Lord Shiva, which the High Court found “derogatory.”

The High Court had held that Malviya had “overstepped the threshold” of free speech and called for his custodial interrogation.

In his petition before the Supreme Court, Malviya stated that the cartoon was a satirical comment published during the COVID-19 pandemic, aimed at public discussions around the efficacy of vaccines. He claimed that it was later reposted by another social media user along with commentary regarding caste census, which he only shared without endorsing the opinion.

Advocate Vrinda Grover, appearing for Malviya, informed the Court that Malviya has deleted the post and tendered an apology.

However, the controversy deepened on Tuesday after Additional Solicitor General (ASG) KM Nataraj placed on record new screenshots allegedly showing other objectionable posts by the cartoonist.

Grover questioned their relevance, pointing out that the screenshots were undated and unrelated to the FIR under challenge.

“This is not related to the FIR. We don’t know the dates when these were taken. A person is allowed to have a critical opinion of things. He cannot be disallowed from saying something just because an FIR is registered. Has he lost that right?” she asked

Grover also said she was seeing the fresh material for the first time and it prejudiced her client’s case.

Justice Dhulia responded that it was time for a broader framework on such issues.

“There should be a test. We’ll have to do something on this,” he said.

Grover then told the bench that Malviya was willing to delete any further posts that may be found objectionable.

“I assure the court this contact will not continue,” she said.

The bench took note of this assurance but did not permit any immediate deletion.

When Grover formally sought permission to delete additional posts, the ASG objected.

“Let them furnish all the copies of the post, then delete. The copy has to be given to the investigating officer also. Let them not delete as of now,” Nataraj submitted.

The Court ultimately recorded the submission but declined to grant permission to Malviya for deleting the posts.

“We have only recorded your submissions. Not passing any order,” it clarified.

It further directed that if any other offensive posts by Malviya come to light, the State would be free to move an application before the Court for appropriate relief.

The case will be heard next in August.

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