The Role of Courts in Protecting Artists and Writers Has Not Been Consistent: Shahrukh Alam

Each time “Freedom of Speech” is invoked, it라이브 바카라 really to admit that in that moment, limits of acceptable speech have already been reached and now we are invoking that particular freedom to find some more breathing space, to push back a little bit. So, the frequent invocation of this freedom is also a reflection on how quickly we reach the limits of socially and politically acceptable speech or satire. Kunal라이브 바카라 comedy show should not have ignited this debate at all. We should not have to invoke freedom of speech and expression at everything we utter. Kamra has been booked for defamation and for causing public nuisance, both of which are not made out in my opinion.

Article 19 (1)(a) gives all citizens the right to freedom of speech and expression. The default position is that speech is protected. However, there are certain exceptions to this blanket freedom in Article 19 (2), which creates a category of ‘restricted speech’. It carves out certain restricted speech, from within the default position of free speech.   

Article 19 (2) allows the state to put reasonable restrictions on speech in the interests of the sovereignty and integrity of India, or in the interests of state security, of friendly relations with foreign states, public order, decency and morality. Speech is, of course, not protected when it is directly inciting violence, or when it is in contempt of court, or defamatory.  

But these are very broad heads, liable to interpretation in very broad terms, and also in narrower terms, depending on how insecure we are feeling as a society and as a polity at any given point of time. In more recent times, restrictions on speech relating to “state security” have become ever broader. Speech has been criminalised to the extent of being equated to “terror acts” and the “security of the state” has been reduced to an expression of dissent with the government of the day, or criticism of laws and policy decisions. Similarly, protests against the attack on Gaza have been restricted, purportedly in the name of safeguarding ‘friendly relations’, without any discussion of obligations under international humanitarian laws.  

Flowing from the categories of restricted speech in Article 19(2), speech is sometimes criminalised too. Criminal law also applies broader categories of “seditious speech” or speech that ostensibly endangers the integrity of the state, or harms state security. The limits of expressing dissent towards the state are judicially managed: sometimes given much more leeway, and sometimes very little space. 

 In colonial India, seditious speech included any speech that showed a “lack of affection” towards the king and the state. Over time, the constitutional court of independent India reinterpreted the scope of dissenting speech and decided that only speech which directly incited violent insurrection could be criminalised. But it seems, the pendulum is swinging again where any speech that is less than congratulatory towards the government in power is considered criminal. 

The most standard test is when speech is directly inciting violence, and then when actual violence occurs as a proximate cause of such incitement—the “spark in a powder keg” test. However, the test that라이브 바카라 become more prevalent is the “heckler라이브 바카라 veto”—when a group of visible and vocal people express actual hurt (or more frequently, the potential to get hurt) and threaten disruption and the police citing ‘law and order issues’ restricts speech. This is an inversion of the law.

Reasonable restrictions do not include the heckler라이브 바카라 potential to get offended or hurt and then be “provoked” into violence. All too often, the state absurdly puts criminal liability on speakers who have allegedly “provoked” people into becoming violent. We have seen it also during the anti-CAA protests, where all criminal liability seems to have been applied to the protestors, who allegedly provoked a reaction, and not to those who counter-mobilised, and directly incited violence in opposition to the protests.  

 Finally, “hurt sentiments” (without first talking about the dynamic of power, or of social and political contexts) and consequently “public disorder” are also colonial legacies, where the native population was assumed to have very delicate sensibilities, prone to hurt and provocation, and not amenable to public debate and reason. We are once again exhibiting eggshell sensibilities.  

We have also retained blasphemy as a criminal offence. We’ve sort of refashioned it as speech that causes religious offense or which hurts sentiments. There is this category of restricted speech (outraging religious feelings, insult to religion/religious beliefs), which draws from blasphemy traditions, particularly in the Semitic religions. Interestingly, these offences don’t only pertain to Semitic religions with known traditions of blasphemy, but equally to all religions, including Hinduism, where ‘blasphemy’ was a foreign concept.   

 The blasphemy traditions—like general “hurting of sentiments”—were formalised, without proper analysis of its social and historical context into law. They have unfolded in different ways in different jurisdictions: in Pakistan, for instance, where it라이브 바카라 been weaponised against the most marginalised groups, as a form to summarily prosecute and condemn. In India—and the West—it is often used to show yet another example of Islam라이브 바카라 intolerance, even in contexts where religious slurs are made only in order to humiliate and to further marginalise.  

 I believe that in cases of alleged blasphemy (and in cases of dissenting speech), we do need to invoke our freedom of speech and try to push back, but equally push back keeping in mind the dynamic of social and political power. When blasphemous speech is merely part of a larger pattern of systemic discrimination, then it is no more a problem of offensive speech. It then becomes systemic hate speech, meant to religiously target a community. Inversely, when it is weaponised against religious minorities, as in Pakistan, then it deserves a consistent push-back.  

 It matters who라이브 바카라 saying what and who it라이브 바카라 directed at. The Supreme Court has said that when somebody who라이브 바카라 in a position of power—political, social or economic—is making that speech and targeting somebody on the margins, then that speech has a very different connotation. Inversely, when somebody on the margins is attacking somebody in power, then that is a very different nature of speech, even if it's offensive, even if it's hurtful. The first is actually an attempt at further marginalisation by targeting communities, by making fun of their religion, and culture. It라이브 바카라 not just causing offense. It라이브 바카라 causing actual and systemic discrimination. 

 When people compare Kamra라이브 바카라 case with a recent case of alleged blasphemy where freedom of speech was apparently not similarly invoked, it only sets up false equivalences between religious targeting and political dissent. It does not even achieve any meaningful push-back on blasphemy related touchiness, but only manages to expand the scope of blasphemy—suggesting that even political leadership can be blasphemed against, by critiquing or lampooning them.  

The state라이브 바카라 response in Kamra라이브 바카라 case, totally illegal and over the top, also tells you about the positionality of power, which is very important in the context of examining speech. Was the speech in question meant to humiliate someone who is socially, politically weaker? Or, was it done as a form of political dissent? The state라이브 바카라 response is a very clumsy and ham-handed attempt at categorising political humour as an offence.  

Democratically, creatively subversive. I think when you’re feeling in a corner, politically, or despairing over the growing authoritarianism, or feeling that spaces for dissent have reduced drastically, then laughter is a very good response. Laughter as distinguished from humiliation, or systemic marginalisation. There is an important difference.  

 I completely endorse the politics of laughter. Brecht (German theatre practitioner and playwright) once said: “Will there be singing in dark times?” We might add: “Will there be laughter in dark times?” There must be laughter in dark times to enable us to get through the dark times.  

First, criminal law doesn’t so much focus on emotional hurt, or offense, as it does on the consequences of such hurt—a provocation to violence, disturbance of peace and public tranquillity. So, what law seeks to criminalise is speech that is so vile and provocative, or speech that deliberately misinforms (like shouting “fire” in a crowded space and causing a stampede) that it will cause a reaction in the form of public disorder. It is not the genuineness of the offense taken per se, but the volatility and motivation behind the speech, and whether it actually caused a disorderly reaction.  

 In contrast to the above, “hate speech” jurisprudence seeks to examine the effects of consistent and systemic targeting, which might cause genuine and extreme hurt, but often no reaction, since the community is so marginalised, it cannot even get violently provoked. Hate speech focuses on systemic discrimination as a result of targeted offensive speech, while criminal law largely focuses on dangers to public tranquillity as its consequence.  

 On the other hand, politically motivated violent reactions, and manufactured outrage qualify as “heckler라이브 바카라 veto” where nothing overly offensive was said, but it has been unreasonably received as a provocation. There is always the test of a reasonable and prudent person, or of what can reasonably be considered a spark in a very charged atmosphere.   

 Even if Kamra라이브 바카라 act was “politically motivated”, which is the allegation against him, it라이브 바카라 still not an offence. Even if he sat with the Opposition and wrote his script together with them, still it라이브 바카라 not an offence. By suggesting that it is an offence to make fun of the government, what you’re actually doing is once again expanding the scope of blasphemy. You’re suggesting that the Opposition is blaspheming against these political figures by making fun, together with Kamra. You’re also suggesting that these figures now embody state security and you can't even make fun of them.  

 However, yes, humour is subjective. You can find something in bad taste, or just boring. A lot of stand-up comedy is frankly just boring. But that does not mean it has to be banned. Mostly there라이브 바카라 bad humour. Mostly there is humour that라이브 바카라 sexist and offensive in many ways. But we need a wider spectrum. We need to be reasonable. Satire or comedy have usually been given more leeway because there is an artistic license.  

In Indian legal jurisprudence, we have given more leeway to satire. We’ve gone through ups and downs where sometimes we are very prudish about these things and, at other times, we are not. We give comedians and satirists that kind of space. But it라이브 바카라 not been constant. Some of our best writers have been dragged to court for their written work. There라이브 바카라 no specific protection afforded to them. They’re also assessed on the same parameters as any other citizen.

Allahbadia라이브 바카라 case would probably fall under the category of restricted speech of obscenity, decency and public morality. They argue that it라이브 바카라 indecent, and it라이브 바카라 “grossly repugnant to contemporary community standards of decency”. I’d argue that there must be more space for pathetic humour. Did it have the tendency to morally corrupt or cause depravity in anyone? Although, the misogyny in such humour must also be recognised and called out, publicly. The misogyny, if not the depravity, inherent in the content certainly influences young minds. We have all been watching Adolescence on Netflix.

But I’m not sure how Kamra라이브 바카라 act has been framed as an offence, in the first place. They are not alleging obscenity, or indecency. They are alleging public nuisance but not making the case that Kamra was circulating false information. They are, in fact, trying to frame it as something akin to ‘blasphemy’—how could you attack a former chief minister, or the home minister, etc? So, it is framed almost like a blasphemy offence or a national security offence, drawing in the Opposition saying it라이브 바카라 a political conspiracy. 

The problem with hate speech is not that it라이브 바카라 causing offense; the problem is that it라이브 바카라 causing very systemic discrimination. It builds up. It라이브 바카라 accumulative. You keep saying something about some section of people, and it builds up over time till the section is typecast in a particular, and discriminatory way. Offensive speech could be between equals. Hate speech is really a majoritarian problem. Somebody on the margins can’t indulge in hate speech against somebody who's in power. That라이브 바카라 the nature of hate speech. It라이브 바카라 to do with power. But the law has not effectively drawn that distinction yet.  

The former chief minister will have to decide because if at all it라이브 바카라 a breach, it라이브 바카라 a personal breach. It has to be a personal grievance. So, he will have to see where he stands vis-a-vis the remarks that were implied against him—whether there is a ring of truth, whether they were in the public interest, whether he thinks that there is enough of an implication to drag him in. But these are decisions that the former CM would have to make. 

 The strange thing in Kamra라이브 바카라 case is that the police have filed a defamation case against Kamra which should not stand in law because defamation is a private grievance. Interestingly, truth is a defence to defamation. So, if Kamra is able to prove that all of what he said is true or has the probability of truth, there라이브 바카라 no defamation case to be made.  

Not consistent. And the courts have also not given enough attention to the dynamic of power, or to systemic attempts at creating stereotypes, through speech. Thus, even when reiterating freedom of speech, they have treated all speech—whether dissenting against power, or discriminatory—as one. Perhaps, it라이브 바카라 not the function of law to evaluate social and political contexts.  

 Very recently, the Supreme Court quashed the criminal case against a poet/politician for a poem he had circulated on social media, and also held that “Literature including poetry, dramas, films, stage shows including stand-up comedy, satire and art, make the lives of human beings more meaningful. The Courts are duty bound to uphold the fundamental right under Article 19(1)(a).”  

 At the same time, and because it is a poly vocal court, it did not feel that Allahbadia라이브 바카라 attempts at humour merited a similarly liberal approach. To scrunch your nose and move on! 

 Ismat Chugtai and Manto were famously tried for obscenity in 1944-45, and after a prolonged trial acquitted. In 2015, there was the case of Devidas Ramachandra Tuljapurkar who had written a very nasty poem about Gandhi and was being tried for obscenity. The Supreme Court said that the question before it was whether “despite all the poetic license and liberty of perception and expression, whether poem or write-up can use the name of a historically respected personality by way of an allusion or symbol in an obscene manner?” The Supreme Court then held that the use of indecent language against historically respected figures is an offence so the poet will have to face trial.  

 Also, the courts have been hesitant about censoring the recent spate of films, which are ambiguous as to whether they are portraying facts or fiction, and yet manage to mobilise frenetic political sentiments, mostly against Muslims.