Indian law unfortunately affords protection to the prickliest common denominator in society
Producers of entertainment content, especially stand-up comedians, are increasingly becoming the target of legal action. To take just two examples, while Kunal Kamra is facing contempt proceedings for remarks about the Supreme Court, fellow comedian Munawar Faruqui had to spend more than a month in jail on vague charges before getting bail. Are Indians so lacking in humour that their first response to a joke is to take offence and then file a case? In a discussion moderated by G. Sampath, Agrima Joshua and Arti Raghavan explore this question. Edited excerpts:
All of a sudden comedians seem to be offending everybody’s feelings. What’s going on?
Agrima Joshua: I don’t think this is all of a sudden. The culture of taking offence started right around the time stand-up comedy began picking up an audience on the Internet.
Was this in 2011?
Agrima Joshua: No, 2015. In 2011, comedy was still happening mostly in clubs. As soon as comedy began reaching out to the masses on YouTube, some mainstream comedians began attracting huge amounts of outrage. So, this culture of outrage and offence has been pretty standard.
What has changed since 2015?
Agrima Joshua: The comedy scene has evolved. Initially, it was just people coming on stage and talking about their nagging wives, women drivers, and so on. But as a particular art form evolves, you start to explore different topics, the depth and richness of your material increases. Comedians began to have an impact. I remember AIB was able to do a successful campaign on net neutrality. As comedy as an art form began to gain traction, it led to people doing satire, making observations on society, questioning power structures. It was no longer limited to elites in a comedy club. It was picking up a mass audience and creating conversations online, which is why comedy started getting a lot of attention.
Is there something wrong with our laws? There seem to be so many that empower offence-takers.
Arti Raghavan: Yes, the offended members of society are spoilt for choice when it comes to legal provisions they can invoke in an attempt to criminalise creative expression. Under the IPC, there are provisions relating to offending religious sentiments, the criminal defamation law, the obscenity laws, and provisions for statements that amount to public mischief. If the objectionable content is available online, there are also implications under the Information Technology Act.
The problem is that the law affords protection to the prickliest common denominator in society. What’s notable about these laws is that they don’t only prohibit speech that harms vulnerable communities, or speech that reinforces historical prejudices against them, such as homophobic speech. Our speech laws are class agnostic and group agnostic. So, they lend themselves to powerful classes and communities, which may be quick to take offence, to use these laws even if they’re not tangibly harmed and seek prosecution on that basis.
How is offending someone’s ‘sentiments’ a crime when that person is not physically or otherwise materially harmed?
Arti Raghavan: Offending someone’s sentiments is itself recognised as a harm under criminal law. This is unfortunate because the role of art and comedy is often to provoke and to offend. So, it’s unsurprising that content that pushes the envelope has been sought to be criminalised.
How does such weaponisation of the law affect comedians?
Agrima Joshua: Lots of brands and companies do not want to be associated with an artist who has a political background. I won’t say any comedian has a political background as such, but if you have certain political leanings, or they assume that your jokes do, they immediately tag you as a ‘controversial artist’.
Do you mean any kind of political leaning? What about a pro-government comedian?
Agrima Joshua: There’s no such thing as a pro-government comedian because the very essence of comedy is to be audacious, to make fun of the people in power. If you are making pro-government jokes, I don’t know how anyone would find them funny.
Is Section 295A applicable only for official religions? Can I say that Sachin Tendulkar is my god and sue someone who has made fun of him, on the grounds that my religious sentiments have been hurt?
Arti Raghavan: There is no restrictive reading in the law as to what qualifies as a religion. It’s not been defined under the IPC. The consequence is that it can be applied to, for instance, a self-proclaimed godman or a cult. While Tendulkar, I hope, is still a stretch, it could apply to situations where it was never meant to really apply, as there is no tight definition as to what could amount to religious feelings, which is what makes this provision so prone to misuse.
Agrima Joshua: So, can I just declare Fawad Khan as my religion and file an FIR against whoever makes insulting remarks about him?
Arti Raghavan: I’m sure there would be a police officer who may privately agree with you that Fawad is a more godly figure than a lot of other establishment figures or gods. But this hasn’t been tested in a court of law yet.
Agrima Joshua: I can use the FIR as an intimidation tactic. If somebody makes a meme on Fawad Khan and I don’t like it, I can take a screenshot of that FIR and go like, ‘Buddy, I’ve done this for you. Now delete your tweet.’
Arti Raghavan: I wouldn’t advise it.
Under what provision of law can a comedian be penalised for making ‘anti-national’ jokes?
Arti Raghavan: It’s irresponsible and wrong for a government to be going after ‘anti-national’ content, which is not a legal concept. Often, criticism of the government is elevated to the status of sedition. And that’s what is used to prosecute individuals who criticise the government. Though the ‘anti-national’ label has no legal status, the labeling feeds into the prejudice that’s created against these individuals through the media. This prejudice is eventually leveraged when there is an intention to prosecute them, so that some antipathy is created against these individuals.
There was a time when, say, only rape jokes were taboo. Has the list of subjects one can’t joke about grown over time?
Agrima Joshua: Are you really saying rape jokes are taboo? Please go through the so-called YouTube comedians and look at the kind of content they make. India is very okay with rape jokes, misogynistic jokes, casteist jokes, jokes that make fun of marginalised people. The limits to the topics that people can joke about have always been there. But they are only there to protect the already powerful. Tomorrow, they’ll say you can’t make jokes on Adani-Ambani also.
If something occurs to me as really funny, I will joke about it – it’s as simple as that. If I was a Delhi guy with an ex that I obsessed about, and I wanted to write jokes only about her, I would do that, because that was something I would think about all the time. But that’s not what I think about all the time. When I wake up, I see the news a lot. What I see seems ridiculous to me, and I write about it. It’s not that you sit with an agenda that I must make a joke on the establishment.
Is not having a sense of humour one of the eligibility criteria to become a lawyer or judge?
Arti Raghavan: As a lawyer, I should perhaps attempt a defence here, but I have to agree that the legal community in India takes itself too seriously. I don’t know if you’ve had the misfortune of actually being in a courtroom, because what passes off as courtroom banter will just bear out the point that you made: lawyers and judges lack a sense of humour.
Indian society in general lacks a sense of humour. But why this is a uniquely problematic aspect of the legal community is that it is instrumental in shaping and giving effect to the laws that protect freedom of speech. So, its conservatism has a direct impact on how the law is applied. For instance, obscenity laws adopt a community standard test. The test is whether the material is offensive in the context of contemporary social mores and attitudes. In a country of over 1.3 billion people, determining this standard is impossible. So, what is applied is the social and cultural consciousness of judges and lawyers.
Is our justice system inherently biased in favour of tradition, making for an intangible but real conservative bias?
Arti Raghavan: The legal community clings to tradition. It has very rigid hierarchies, and an almost comical reverence for authority. There was this case where a young woman was jailed for reposting a meme about West Bengal Chief Minister Mamata Banerjee. When she was released on bail, the Supreme Court directed her – remember that this is the stage of bail, when she’s not even been tried or convicted – to issue an apology to the Chief Minister. So, the servility that is so common in this profession manifests itself in the outcomes in courtrooms. Also, when sitting judges of the Supreme Court heap praises on the Prime Minister, referring to him as a ‘versatile genius’ and ‘visionary’, this isn’t the kind of judiciary that’s going to be robust in protecting the acts of citizens who are thumbing their noses at authority. As Agrima said, comedy, at its finest, is audacious. And that’s not a sentiment that finds any currency in the legal community.
Agrima Joshua: If our freedom fighters had had this much reverence for authority, I don’t think we would have been able to get our freedom. If you have unquestionable reverence for authority, how are you going to fix systems that are broken? The problem with comedy is that because we are seeing things in such comical fashion, because it’s technically comedy, people assume it’s insulting rather than something that is supposed to make you think. So, people automatically assume the worst of us, they assume that we are just trying to offend people. I can write a 2,000-word essay to explain my point. But it won’t be funny, and nobody will listen to that in a comedy show. To convey my point, I have to say it in a funny way. If it is funny, it is going to be a little disrespectful.
In India, many would consider it fair that if you’re going to be disrespectful of authority, there will be consequences.
Arti Raghavan: You see this in contempt proceedings often. You have an institution that unfortunately suffers from a god complex — historically, judgments have had these self-serving, self-promoting notions of the majesty of justice coming from the courts of law, and how the Supreme Court is the temple of justice. A truly democratic institution will leave that to the people to judge and won’t be claiming such titles for itself. But that institutional circumspection and humility hasn’t happened yet.
So is it fair to say India is criminalising comedy?
Agrima Joshua: Comedy has existed in India in other forms. Long before YouTube and stand-up, there used to be Haasya Kavi Sammelans, which are satirical poetry gatherings. I would encourage everybody who has a problem with stand-up comedy to check out the works of these Hindi poets. Surender Sharma, for example. They make allusions to gods and goddesses, to mythology. They use religion as an allegory to comment on inequalities. So I really want to know why we keep isolating stand-up comedy as something evil and immoral when this form of satire has existed for such a long time.
Arti Raghavan is an advocate practising at the Bombay High Court. She is also the counsel for Kunal Kamra in the criminal contempt proceedings before the Supreme Court; Agrima Joshua is a Mumbai-based stand-up comedian