Co-authored by Rishabh Sinha, Lawyer at Tanikella Rastogi Associates
A 'roast' is a form of comedy that is both mean and good spirited, and most importantly is consensual, but that did not prevent a widespread condemnation of its offensive content. Such run-ins with the freedom of speech by state, state-sponsored and private censors have always left simpletons offering condolences to the over-sensitive for their loss of sense of humour. It also begs the question, that if the subjects of the law don't have a sense of humour, does the law have one?
Content Control And The Media
Traditionally, newspapers, radio and television were the only medium that enjoyed a mass reach. For this reason, there is enough regulation to specifically censor content on these mediums. For instance, television programmes must adhere to the Programme Code and the Uplinking Guidelines and Downlinking Guidelines, which make for a very interesting read. A sample is as follows: "No program should be carried in the cable service which... (a) offends against good taste and decency; (d) Contains anything defamatory, or false and suggestive innuendos and half truths; (k) Denigrates women through the depiction in any manner of the figure of a women, her form or body or any part thereof, or is likely to deprave, corrupt or injure the public morality." If we were to honestly uphold these standards, a lot of the content we consume every day is sitting on the cusp of a ban from television.
"The question that begs to be answered then is why does the law not have sense a of humour? "
While content controls on television and other traditional mediums are very stringent, the state allows more room for online dissemination of material. This is largely due to the unwieldy nature of the Internet for: (i) that it allows almost anyone to publish content; and (ii) that unlike traditional mediums, the service providers (ISPs) have minimal control over the content being published. This makes any sort of mechanisms devised to control content, arduous to enforce. It is for these reasons that comedy collectives like AIB have till now been able to publish content on the Internet which would have never seen light of day on television. However, the Information Technology Act, 2000 does regulate online content and has gained notoriety for its scissor-hands.
A slew of other laws have been creatively used to censure discomforting content. Some examples are Section 294 ("obscene acts and songs") and Section 295A ("outraging religious feelings of any class") of the Indian Penal Code.
One Tight SLAPP
Despite the aforementioned laws being routinely invoked, there are few instances where the complaint concludes with judgment. This points to a much larger issue, where the raison d'être for such laws needs to take a comfortable back seat; that is, the strategic and systematic abuse of state machinery to silence individuals lacking the resources to mount an effective legal defence. Such lawsuits are popularly known as SLAPP suits (Strategic Lawsuit Against Public Participation). The aim of such a lawsuit is not to win on merits of the claim, but to use the legal process itself as a tool of oppression. Take for example the strategy followed by IIPM dean Arindam Chaudhuri in taking down content that lampoons IIPM or him. A defamation suit is filed against the defaming party in Silchar, Assam rather than New Delhi, where the institute is based or the place where the Defendant resides. The suit is then let to drag in the Indian courts till its final resolution, however, it would seldom come to that, with many dissenters opting to settle lawsuits on whatever terms it takes.
Why So Serious?
In a free society, we enjoy both, the right to offend and the right to get offended. It is exasperating that any expression that causes discomfort or displeasure to a section of society is met with increasingly vehement censure. For those who don't have the muscle power, the financial bandwidth and/or the legal firepower to deal with such threats, freely speaking your mind will always mean being prepared to pay a huge cost.
"Sensitised comedians are likely to have an enhanced frame of reference when assessing the risk-reward ratio in putting out certain content."
The question that begs to be answered then is why does the law not have sense a of humour? Our constitutional history is rife with examples where severe constraints on liberty have been fought back decisively, providing our judicial system an opportunity to settle the matter for good; and therefore, in the wake of draconian laws and processes which take away liberties constitutionally guaranteed to us, these challenges in a way, are a necessary evil and our only chance in making room for a sense of humour in our legal system. Meanwhile, our duty as conscientious citizens is to minimise the number of martyrs to the system. An important part of achieving this is sensitising comedians of the risks involved. When members of AIB, in an interview at the India Today Conclave, were asked if they expected a backlash of the current magnitude to their roast, they were quick to admit their astonishment. In comedy circles today, many will use terms like "market leaders", "trailblazers" and "visionaries" to describe AIB; and therefore it will be safe to assume that their inexperience is representative of the comedy industry at large. Sensitised comedians are likely to have an enhanced frame of reference when assessing the risk-reward ratio in putting out certain content. Comedians, being the embodiment of free speech itself, also need to take a tough stand on actions that infringe on such liberties. They must not cower or bow down to legal hooliganism. In the context of SLAPP suits, it is often the cost of pursuing litigation that deters a proper defence. However, for such cases, there is help on the horizon in most of these cases through legal NGOs like the People's Union for Civil Liberties, iProbono and iJustice. Paraphrasing Hogwarts headmaster, Albus Dumbledore: help is always given to those who deserve it.
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