Introduction

In the ordinary lives of humans, the most sought-after mood-changer is undoubtedly, the comic relief. A simple joke can turn the tide of a melancholic storm in a jiffy. Humorous quotes, statements, cartoons or songs etc. make the atmosphere light and lift the human spirit. That is why a person gifted with the comic sense is welcomed by all. However, at times, such comic activity hurts others in both ways, deliberately or inadvertently. Many times, a small comic intervention between two individuals takes an ugly shape and results in bloodshed and then, law takes its own course. Though legally speaking, cutting a joke is very rarely illegal. Likewise, listening to a joke is also not illegal. Disseminating or laughing at a joke is certainly not illegal. It is perfectly legal either to laugh at oneself or at the world. Law comes into picture only when the affected individual makes a complaint before the police or the law enforcement authorities suo motu register a complaint against any comedian, cartoonist or the comic entertainer. It would be worthwhile to explore and assess the impact of different kinds of comic activities on society in general and on the legal framework prevailing in India and abroad.

1. Poetic conclaves: Hasya Kavi Sammelan

In these poetic conclaves, poets recite their poems on humorous themes. Often, the subjects of such poems are the politicians, husband-wife relationship, or the comic characters lifted from the day-to-day life. People enjoy this kind of light bantering the whole night. Generally, nobody objects to such recitations of poems by the poets as they refrain from hurting sentiments of others. In Varanasi at Assi Ghat, (Uttar Pradesh), a whole night poetic conference is organised every year on the occasion of Holi festival where all kinds of abuses and foul language are hurled at various public personalities. The audience heartily enjoy the utterances of the poets. However, often some local residents complain about such outbursts, but it has not resulted in any police action so far.

2. All India Bakchod roast

A comedy roast is an event where a celebrity is laughed at by all with his consent. In this event, his friends, acquaintances, peers and enemies assemble and insult him to the general merriment of the paid audience. The money collected from the audience is given to the beneficiary of the celebrity's choice. This provides an opportunity to the celebrity to laugh at himself and to prove that he is a good sport welcoming the jokes made at his expense. In December 2014, in an event, Bollywood actors, Ranvir Singh and Arjun Kapoor were the celebrities who consented to be roasted by the audience which included their peers from the film industry also. Rs. 40 lakh were raised from the event for charity. Noted filmmaker, Karan Johar officiated as master of the roast. The panel of roasters included the three comics, Gursimran Khamba, Rohan Joshi and Tanmay Bhat, who were members of the comedy group, AIB. Film stars, Deepika Padukone, Alia Bhat and Sonakshi Sinha were present amongst the other attendees. The whole event was a huge success. Nobody from the audience or the celebrities complained, and everybody had a good time. The jokes ranged from the risqué to the rude. However, a hitherto unknown outfit, Brahman Ekta Sewa Sanstha, filed an F.I.R. at the Sakinaka police station in Mumbai. A Catholic organisation filed a civil suit for damages while a criminal complaint was lodged by a professor which resulted in a Magistrate's direction to launch a criminal investigation. The Bombay High Court was further petitioned to look into the controversy. Incidentally, none of them formed a part of the audience.1

The tradition of roasting owes its origin to comedy clubs in the USA and drew inspiration from a street game known as "The Dozens". This game is often played on the streets mostly in black majority areas. "The Dozens" is a game of spoken words where the participants tend to insult each-other until one concedes the defeat. It is generally played in presence of an audience of bystanders who encourage the participants to reply with matching and bigger insults. This way, they heighten the tension and make it more interesting to watch. This game is connected to a Nigerian game called Ikocha Nkocha, which literally means "making disparaging remarks". Similar games have been noticed in Ghana also where insults are generally directed at family members. The need to laugh at and be laughed at forms an integral part of many cultures. Famous writer, Jane Austen has beautifully summed up this sentiment as such: "For what do we live, but to make sport for our neighbours, and laugh at them in our turn?"2

3. Cartoons

Cartoons are drawn on paper with an intent to spray a pinch of humour into the otherwise listless and tension-filled lives of the individuals and are generally harmless. Yet sometimes, they hit the nail by making scathing comments through their sketches. This has angered the public sentiment many times. Also, the lampooned public figure also felt bad because of his tarnished image in the public eye. A glaring instance is that of Charlie Hebdo attacks in France. There, a Muslim organisation prosecuted Charlie Hebdo in 2017 saying that cartoons of the Prophet Muhammad implied racism and hate speech. It was the response of the magazine that it specialised in satirical humour, not racism. It was also stated by them that white racism had also been lampooned as well as Catholics and Jews. One of its covers had a cartoon showing the prophet saying, "100 lashes if you don't die of laughter". That's humour, not racism. The magazine was thus acquitted of the charges. But its office was firebombed in 2011 and attacked again in 2015 by two Muslim fanatics killing 12 journalists.3 Charlie Hebdo still refused to budge from its course. In 2020, a knife-wielding attacker, shouting "Allahu Akbar" entered a church in the city of Nice in France and beheaded a woman and killed two other people in an "Islamic terrorist attack". The incident occurred in the context of the controversy over satirical magazine Charlie Hebdo's decision to republish Prophet Muhammad's caricatures. The attack came on the birthday of the Prophet Muhammad. This incident was similar to another incident of two weeks ago when a school teacher, Samuel Paty was beheaded by an 18-year old Chechan radical in a suburb of Paris where the school was situated. The teacher had allegedly used cartoons of the Prophet Muhammad in a civics class to explain his point. Charlie Hebdo is a French weekly that sees itself as politically left. It was, by many accounts, not just an irreverent magazine, but a racist one. It didn't hesitate a bit to delve into areas which could well be called fanning xenophobia, anti-Muslim sentiments et al. But no one should be hurt on this pretext. Incidentally, Charlie Hebdo's forerunner, Hara-Kiri, had been banned by French authorities in the past.4

In the neighbouring Sri Lanka, cartoonists have faced tougher times. India's core cartooning has been political and our cartoons have grown in and around cities backed by job-seeking migrants, including the cartoonists themselves.5 In Indian context, no controversy worth-mentioning has come to light to this date.

4. Stand-up Comedy

Stand-up comedy is a popular form of comedy show in which the artists perform before a limited audience in a hall on stage. Presently, this is quite popular amongst youth. Generally, the performers cut jokes on social issues, politicians and other celebrities in the language of the masses. Recently, in India, a few comedians of this genre had to face the ire of the establishment due to their irreverent comments on the political leaders and the system. Some of these cases can be enumerated as such:

a. Munawar Faruqui:

In 2021, comedian Munawar Faruqui and his five associates, namely, Nalin Yadav, Edwin Anthony, Prakhar Vyas, Priyam Vyas and Sadakat Khan were incarcerated in Indore Central Jail. Pronouncing an order, Madhya Pradesh High Court's Indore Bench ruled that "under the garb of standing comedy" Faruqui had prima facie violated Section 295A of the Indian Penal Code. After three bail rejections by a Magistrate, Sessions Court and High Court, the Supreme Court granted them bail in February 2021. The charge levelled against him by a Madhya Pradesh MLA was "hurting religious sentiments". He had also seemingly hurt non-religious sentiments in one of his performances by cracking a joke about a Union Minister.6 Further, in November 2021, the Bengaluru police cancelled a ticketed show of Faruqui citing the "law and order problem'' as the. show could "create chaos". During the whole year of 2021, Faruqui's several shows have been cancelled in several cities, from Mumbai to Raipur to Surat, after threats of violence by Hindu right-wing organisations.7

b. Kunal Kamra:

In January 2021, the Supreme Court of India took up petitions against stand-up comedian Kunal Kamra and illustrator Rachita Taneja, that have accused the duo of denigrating the judiciary and judges through their tweets. In response through an affidavit, Kunal Kamra stated that while he never intended to diminish the people's faith in the highest court of the democracy, "the people's faith in the judiciary is founded on the institution's own actions and not on any criticism or commentary about it."8 He further stated that he believed even judges knew no protection from jokes.

Kamra, in his affidavit, implored the highest court that being offended was a necessary incident to the exercise of the right to free speech. He too, had questioned the apex court's prioritisation of the Arnab Goswami case. He averred that "These jokes are not reality, and do not claim to be so. Most people do not react to jokes that don't make them laugh; they ignore them like our political leaders ignore their critics. That is where the life of a joke must end….I do not believe that any high authority, including judges, would find themselves unable to discharge their duties only on account of being the subjects of satire or comedy."9 Elaborating further on jokes, he stated in the affidavit that jokes needed no defence. Jokes were based on a comedian's perception. His job was to share his perception with his audience and make them laugh.10 He noted with a cautionary approach that "powerful people and institutions continued to show their inability to face rebukes and criticisms, we would be reduced to a country of incarcerated artists and flourishing lapdogs."11

In the context of the abovementioned art and craft of the stand-up comedians like Faruqui and Kamra, it would be worthwhile to quote the words of international stand-up comedian Papa CJ, who said "Every audience is different. What one person finds funny, the other may find offensive and vice versa. In my experience though, once the audience understands that your intention is simply to entertain, they will allow you to joke about almost anything.

The danger comes when you put content on the internet, where the show is watched by people other than your core audience. They do not have a sense of the atmosphere and context in which the jokes were cracked. So, the performance and intent can easily be misinterpreted".12 This averment adds further dimension of the internet to the traditional joke-making. Talking further about his performances, he says " if I'm performing at a corporate or personal event, it is my duty to respect the boundaries of my environment. However, if you have come to a ticketed public show that has been advertised as having mature content, then I'll do what appeals to my own sensibilities…….As comedian, we need to stay true to our own voices. But if I feel a joke will be hurtful to the audience, in most cases I will not do it. Others may not. That's their choice and I respect that too. To each their own.13 Most sensible words, indeed that need to be followed by comedians worldover.

c. Chris Rock:

Recently, in March 2022, Will Smith, the best actor award winner slapped Chris Rock, the presenter, during the Oscar awards ceremony and shouted a vulgarity at the comedian-presenter for making a joke about his wife's hairstyle.14 (). Rock's joke can certainly be seen as insensitive as he made fun of Jada Pinkett-Smith's alopecia, which causes hair loss.15

Critical comic comments and the Indian legal regime

Generally, jokes needed no defence, as the comedian Kunal Kamra has averred in his affidavit before the apex court. Jokes are made to regale the audience. But whatever might be the perception of the comedian, jokes do hurt sometimes. They attack human dignity and hit the egos of men and women. In such cases, the question arises as who would decide whether the joke was good, or it carried sting also? There comes the role of law and the courts of law. In the past, some incidents of comedians' crossing the line have been registered before the police and the matter was taken up by the courts.

The very first plea before the courts is raised is that of fundamental right to freedom of speech and expression enshrined in the Article 19 (1)(a) of the Indian Constitution. At the same time, under Article 19(2) reasonable restrictions have been enumerated. That shows that this right is not an absolute right under our Constitution. This is also true about other fundamental rights. This clearly indicates that the fundamental right to freedom of speech and expression is subject to certain reasonable restrictions enshrined in the Constitution itself. These restrictions have to be followed by everybody living in the country including the comic artists. In this connection, one more Constitutional provision has to be kept in mind. "Right to live with dignity" is included in "Right to life and personal liberty" under Article 21 of the Constitution. It was held in the case of Daniel Latifi vs. Union of India, (2001) 7 SCC 740 by the Supreme Court. This concept of human dignity, enunciated by the Universal Declaration of Human Rights, 1948, has been reaffirmed in several judgments of the Apex Court. Thus, both these fundamental rights need to be ensured by all in public life. The criminalisation of comedy is not desired in the least in any democratic country, yet the Constitutional safeguards must be ensured at all costs.

Normally, any comedy show, or cartoon is intended to make people laugh and enjoy. But it depends on the quality of the content of such presentations. Sometimes, the language used in the shows, or the pictures drawn in the cartoons appears to be derogatory or offending to the senses of the targeted individual and the general public. This is done purposely in most of such cases. In these cases, alone, controversies arise leading to police action and the ensuing proceedings in the courts. Though the ultimate arbiter in such cases is the court, it has to be kept in mind by the practitioners of such arts that nothing hurtful or derogatory should come from them against any individual in the public domain. Everybody deserves a right to human dignity on this earth, unless he himself has done something, lowering the bar himself. It is a common feature nowadays that the language used by the comedians in their stand-up comedy shows is full of slang and commonly used abuses. This is particularly true when the audience comprises mostly young people. This trend can be easily avoided. Moreover, the personal attacks on anybody must be based on solid facts and there is no place for mere empty conjectures. Besides that, if such acts or depictions incite communal hatred or fall under hate speech, Sections 153A and 295A of the Indian Penal Code are generally invoked.

As regards cartoon-making, the world scenario has changed a lot. Cartoonists are generally prone to draw sketches of politicians in their cartoons in the newspapers and the magazines. Many times, these cartoons anger the lawmakers, and the cartoonists face their ire. The Indian Express cartoonist, E.P.Unni has aptly described the current situation in an article as "The last century was good to cartoonists. It gave them a world war to hone their skills on tyrants like Hitler, Mussolini, Franco and Stalin and apply these skills to question all authority including what prevailed in labelled democracies. The practitioners were far from kind to Winston Churchill, Margaret Thatcher, Richard Nixon and the Bushes. But none confounded the cartoonists more than Donald Trump. How do you cartoon a caricature who distorts everything he touches?"16 This is a particular viewpoint from the angle of a veteran cartoonist. But there are other inherent dangers to be faced by the political cartoonists worldover.

Conclusion

Stand-up comedian, Kunal Kabra has stated in his affidavit before the apex court that jokes need not be defended as they are based on a comedian's perception. He has further stated that being offended was a necessary incident to the exercise of the right to free speech. Right to free speech and expression are a necessary prop to enrich and strengthen democracy in any country. These propositions are true and beyond doubt. The only question is what should be the limit of these expressions or is there any line to draw by the comic artistes in their performances so that no violation of human dignity takes place? Comedy is a medium through which even a tart or hurting message can be conveyed sweetly. If this messaging is done in crude and vilifying language, probably comedy is not the right medium. One more aspect has to be taken into consideration that under the Indian Constitution, no right is absolute right, and each right should be exercised within the periphery of reasonable restrictions. If the twin principles of human dignity and the reasonable restrictions for every right are kept in mind, there is least likelihood of any confrontation. Even if absolute rights are accorded to citizens, the human dignity must be ensured at all costs. Comedy is not for hurting others on any pretext. It is meant for entertaining people and for cementing the bonds of social fabric. Therefore, the line should not be crossed in a routine manner. If need arises, every word spoken, or any cartoon drawn should be based on solid evidence which could be proved in the trial court. There can be tragicomedy of errors, but the comedy should not be allowed to turn into tragedy by anybody in a free country. Papa CJ, an international stand-up comedian has beautifully summed up the whole sentiments as such:

"In the end, if we comedians and audiences can look at each other with empathy, compassion and humanity, understand the other party's intent, and make our points without feeling the need to resort to violence, the world will be a better, and funnier, place for it".

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References:

1. Sanjay Hegde, The lawlessness of humour, The Hindu, Feb 23, 2015.
2. Ibid.
3. Swaminathan S Anklesaria Aiyar, Right to offend is an inalienable part of right to religious freedom, free speech, The Times of India, Nov 1,2020.
4. Editorial, The Economic Times, Jan 9,2015.
5. E.P.Unni, After Charlie Hebdo, The Indian Express, Nov 3, 2020.
6. Editorial, The Economic Times, Feb 8, 2021.
7. Editorial, The Indian Express, Nov 28, 2021.
8. Utkarsh Anand, 'Faith in judiciary relies on actions, not criticism', Hindustan Times, Jan 30, 2021.
9. Ibid.
10. Krishnadas Rajagopal, Jokes need no defence, stand-up comedian tells SC, The Hindu, Jan 30,2021.
11. Utkarsh Anand, 'Faith in judiciary relies on actions, not criticism', Hindustan Times, Jan 30, 2021.
12. Papa CJ, Where does a comedian draw the line?, Hindustan Times,Apr 16, 2022.
13. Ibid.
14. Reuters, Will Smith slaps Chris Rock on Oscar stage, later wins best actor award for King Richard,Hindustan Times, March 29, 2022.
15. Editorial, What's in a slap, The Indian Express, March 29, 2022.
16. E.P.Unni, Drawing the future, The Indian Express, March 7,2022.
17. Papa CJ, where does a comedian draw the line? Hindustan Times, Apr 16, 2022.