Time for a modern law protecting the right to offend through comedy

Stand-up comics in India can draw on the country’s rich tradition of using humour to challenge authority.

Kathakali artist Kottakkal Devadas plays the role of the jester, Vidyutjihva, in a production, “Ravanothbhavam Kathakali” held in Kochi on August 23, 2017. | Photo Credit: THULASI KAKKAT

Have you heard the one in which a comic, a judge, and a heckler walk into a bar and have a laugh together? Neither have I, and it seems improbable that we will encounter such a situation, other than in a joke. Given the rather tenuous relationship between comedy, law, and a heightened propensity for people to take offence at jokes, we are unlikely to witness a harmonious coming together of the three in the real world. While humour and satire have always been essential to political speech, in the Indian context, comic speech has played a relatively minor part in the development of free speech jurisprudence. Free speech cases in India tend to emerge from seditious speech or expressions that offend religious sentiment, and often in such cases, there is a gravitas associated with these forms of expression.

LISTEN: There indeed seems to be a rich tradition in Indian history that we can draw from to develop a contemporary jurisprudence of comic expression that is simultaneously political, aesthetic, and ethical.

This is not to say that humour has had no role in political expression or as a critique of power. On the contrary, comic speech has always existed in popular culture and in print and electronic media. Right from the colonial period, we have instances such as the prosecution of Awadh Punch, a satirical magazine; the legal charge against Deenabandhu Mitra’s play Neel Darpan (1860); or Dakshina Charan Chattopadhyay’s Gajadananda O Yubaraj (Gajadananda and the Prince). But within the corpus of free speech law, cases pertaining to humour tend to be the exception rather than the rule. This can perhaps be attributed to a significant difference between the social use of humour in earlier times and the proliferation of political humour today, marked by a highly mediatised transformation of the public/private sphere distinction.

Law, humour, and offence

Historically, humour circulated primarily in the form of jokes within an informal, predominantly oral culture that was transmitted without mediation by the media. In contrast, the prominent role of stand-up comics today coincides with an era defined by an immense hunger for content, the development of a mass audience for comedy (aided, no doubt, by the viral nature of social media), and the fine-tuning of comedy as political commentary in contemporary India.

In light of the many criminal complaints that have been filed against stand-up comics such as Munawar Faruqui and Kunal Kamra under various provisions of the Indian Penal Code, including Sections 153A (Promoting enmity between different groups on grounds of religion, etc.), 153B (Imputations, assertions prejudicial to national integration), 295A (Deliberate and malicious acts, intended to outrage religious feelings), and 298 (Uttering words, etc., with deliberate intent to wound the religious feelings of any person), it is safe to say that comic speech has never enjoyed the kind of prestige and following as it does today, even as it has never been as threatened as it currently is. Comedy in India is serious business.

It therefore becomes important for us to re-examine the relationship between law, humour, and the performative economy of giving and taking offence. In this context, a few questions need to be examined: Does comic speech possess any special status within the law? If it does not, will it be necessary to argue for a right to give offence, and in the absence of such a legally acknowledged right, will fearless comic speech ever be possible in these prickly times? Can we look at instances from Indian history that allow us to locate a philosophy of comic speech’s relationship to sovereignty and power? Where can we turn to, if we are interested in locating a philosophically robust justification for a special status for comic speech and the licence to offend?

The Vidusaka’s role

If modern jurisprudence in democratic India is slightly impoverished in its articulation of a comic jurisprudence, we ironically find a relatively rich conception of the same in ancient and medieval literature. The figure of the clown, the court jester, or the buffoon companion can be found in diverse textual and folk traditions ranging from Bharata’s Natyashastra, Kautilya’s Arthashastra, and in the popular narratives of Tenali Raman and Birbal-Akbar.

A scene from the children’s show “The Adventures of Tenali Raman”. | Photo Credit: By special arrangement

In his magisterial history of the king and the clown in south Indian myth and literature, David Shulman identifies a popular character, “Vidusaka”, as an essential part of Sanskrit drama. Often marked by physical deformity and ugliness, the Vidusaka’s grotesque appearance holds a mirror to reality and reveals the real to be that which is truly monstrous and crooked. The Vidusaka often performed the narrative function of rudely interrupting the fantasies of the hero or the king and returning them to the realm of the real, even if mundane and profane. The roots of satire in India can be traced to this history, and cultural scholars argue that ridicule entered the domain of art when Bharata’s sons targeted the divine sages through satire. There is, consequently, a clearly articulated politics and aesthetic of expression that hinges on mocking that which is idealised or held sacred.

Unlike in Western traditions presided over by Plato, who insisted on banishing poets from the ideal republic, the jester in Indian tradition seems to enjoy a much greater licence to laugh truth to power. Whether it is Tenali Raman in the court of Krishnadevaraya or Birbal in Akbar’s court, it appears that these jesters were not just tolerated but also rewarded for their comic excesses. Beneath the humorous veneer of these narratives, however, lurk the looming threat of death and punishment (danda): in several of the popular folk tales involving Tenali Raman and Birbal, they are banished or sentenced to death, only to be eventually redeemed on account of the king’s often belated, and occasionally begrudging, recognition of their value as a necessary check against the hubris of the king, a hubris fed by a culture of sycophancy amongst other members of the court.

The agonistics that underlie the relationship between the king and the clown alert us to two registers of risk and bravery: on the one hand, the obvious bravery of the jester, who risks his life and status by mocking the king. And equally, the bravery required of a king to accept the ridicule of the clown because the king values something more than his delicate prestige: the truth. This complex dynamic reminds us that the encounter between comedy and law may require more than merely a legal conception of liberty and licence; it also requires the necessary cultivation of a sensibility of governance in the form of a sense of humour.

Further, evidence of the licence to offend can be found in the author and critic Sibaji Bandyopadhyay’s translation and interpretation of select passages of the Arthashastra. Bandyopadhyay argues that on a plain reading, the Arthashastra seems to be rather unforgiving of entertainers, and there are myriad regulations and restrictions placed upon them. But he suggests that despite all the structural constraints, these entertainers or Kusilavas (from Lav-Kush, one of the first bardic transmitters of the Ramayana) did enjoy an exceptional right in the form of comic licence. Verse 4.1.61 of the Arthashastra, in Bandyopadhyay’s translation, states: “In their performances, [the entertainers] may, if they so wish, make fun of the customs of regions, castes or families and the practices or love affairs (of individuals)”.

Thus, if stand-up comics like Faruqui and Kamra find it difficult to find judicial precedents that allow comedy the licence to offend, they can take succour in the fact that, moving away from a photocopied version of Indian culture peddled by the quick-to-be-offended army of hecklers, there indeed seems to be a rich tradition in Indian history that we can draw from to develop a contemporary jurisprudence of comic expression that is simultaneously political, aesthetic, and ethical.

The audience in splits at a stand-up comedy show in Visakhapatnam on November 7, 2014. | Photo Credit: A. MANIKANTA KUMAR

While we have spoken much about comedy, it is sobering to remind ourselves that there is a relatively thin line between comedy and tragedy. Shakespeare’s Romeo and Juliet, for instance, is a tragedy that could easily have been a comedy, but it misses this opportunity by a matter of a few minutes. If only Juliet had woken up from her staged death a few minutes (or more precisely, 27 lines earlier), poor Romeo, instead of killing himself, would have been united with his lady love (of any name), and the audience would have joined in their laughter, delighting at the manner in which they hoodwinked their disapproving parents.

But, alas, that was not to be, and we have since suffered their tragic star-crossed fate. Might it similarly be the case that the failure of the law to develop a sense of humour is the reason why we continue to experience comedy in India as tragedy?

Highlights

• Comic speech has never enjoyed the kind of prestige and following as it does today, even as it has never been as threatened as it currently is.
• It is therefore important for us to re-examine the relationship between law, humour, and the performative economy of giving and taking offence.
• There is a necessary relationship between humour and democracy, and centuries of satire have reaffirmed the power of comic subversion.

Power of comic subversion

There is a necessary relationship between humour and democracy, and centuries of satire have reaffirmed the power of comic subversion. When General Zia-ul-Haq ruled Pakistan, a popular joke involved his barber, who while giving the general a haircut, would repeatedly enquire when the elections would be held. After the third time, the general finally blew his top, screaming at the barber, at which point the terrified barber pleaded: “Huzoor, please do not misunderstand me. It is just that your gelled hair is impossible to cut, but every time I ask you about elections, your hair stands up, making my work a little easier.”

If power corrupts and absolute power corrupts absolutely, in addition to breeding corruption then, power necessarily invites ridicule, and absolute power invites absolute ridicule. Kamra argues that irreverence and hyperbole are the comic’s work tool and as essential to a democracy as questions raised by serious and learned commentators. In an affidavit filed before the Supreme Court, Kamra asserts: “I believe that constitutional offices—including judicial offices—know no protection from jokes. I do not believe that any high authority, including judges, would find themselves unable to discharge their duties only on account of being the subject of satire or comedy.” Replying to a charge of contempt for his statement that the Supreme Court was the supreme joke in the country, Kamra asserted: “The suggestion that my tweets could shake the foundations of the most powerful court in the world is an overestimation of my abilities.... Just as the Supreme Court values the faith public places in it, it should also trust the public not to form its opinions of the court on the basis of a few jokes on Twitter.”

Parody and satire as essential aspects of free speech have been recognised by courts in the context of several intellectual property cases. In a 2011 judgment (Tata Sons Ltd vs Greenpeace International), the Delhi High Court recognised the right of Greenpeace to use the logo of Tata Sons in a satirical video game. The court held that parody is inherently paradoxical because it is both original and parasitic and often relies on a dislocation of the original meaning of a word or sign in order to achieve its humorous effect.

In this picture from 2022, policemen are seen restraining protestors outside Hyderabad’s Shilpakala Vedika auditorium, where stand-up comic Munawar Faruqui performed on August 20. | Photo Credit: NAGARA GOPAL

It also suggested that the question of whether parody is in good or bad taste is of less interest to the law than the question of whether it is a communicative expression. Interestingly, the court had relied strongly on a South African constitutional court decision (Laugh it Off Promotions vs South African Breweries, 2005) that had effectively recognised the right to ridicule. In a more recent judgment (Ashutosh Dubey vs Netflix, 2020), the Delhi High Court reaffirmed this position in the context of stand-up comedy, arguing that stand-up comics perform an essential function in a democracy by subjecting social and political ills to ridicule and satire.

It would, of course, be naive to advance a theory of the right to offend which is not cognisant of the fact that humour and satire can equally be the emissaries of power and authority, as evidenced by the plethora of misogynist speech, casteist jokes, and Islamophobic slurs that circulate in plenty on social media. There is, however, a compelling argument to be made for a nuanced distinction between laughing as power and laughing at power.

The liberty to offend

A right to offend certainly does not entail a duty to offend, but without an acknowledgement of such a right, we run the danger of perpetually being an eggshell democracy, where every utterance may result in a criminal complaint or a lawsuit. Kamra, in his affidavit, describes the culture of intolerance where taking offence has become a fundamental right, and speech the exception. He concludes by beseeching the court to recognise that being offended is the necessary price of freedom of speech and expression, adding: “If the powerful are unable to tolerate rebuke and criticism, we will be reduced to a country of incarcerated artists and flourishing lapdogs.”

True freedom, by this account, necessarily entails an artistic licence or liberty to offend, and it is not surprising that the word “licentious” shares its etymological roots with the word “licence”, and licentia was fundamental to a conception of freedom. By contrast, the Italian philosopher Giorgio Agamben demonstrates that the only purpose of angels in theological history seems to be as heralds who sing the praise and glory of god.

In our secular times, embedded media seems to have taken the place of angels while stand-up comics are the fallen angels consigned to suffer in the hot flames of criminal law and procedure.

Lawrence Liang is a professor at the School of Law, Governance and Citizenship, Dr. B. R. Ambedkar