Hasmukh, a show streaming on Netflix starring Vir Das has been in the news due to the legal controversy it has found itself in. Vir Das plays the titular character, a stand up comic in the show, who derives his content by murdering 'evil' persons. One such murder happens to be of a lawyer who has duped him. His set, right after the incident labels lawyers as thieves and scoundrels. It states that "these keepers of law shall never be arrested since they rape with their pen" and ends with "people say law is blind, I say law is dirty". A petition has been filed in the Delhi High Court alleging defamation against advocates, demanding an injunction to stop the screening of the show immediately.
Comics find themselves at the centre of controversy under defamation law often. Freedom of speech includes protection of such speech which otherwise would not be music to our ears. The only restriction that may be imposed is as per Mill's harm principle - to prevent harm to others. Defamation law is a product of this harm principle and J. B. Finch's famous statement explaining limitations on liberty - "your right to swing your arm leaves off where my right not to have my nose struck begins".
Winfield defines tortious defamation as "a publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of the right thinking members of the society generally or tends to make them shun or avoid them." Judiciary often finds itself balancing satire against defamation. Satire is a form of art revealing the 'absurdities, hypocrisies and contradictions of life'. The controversial stand up piece is evidently an attempt at satire. The jurisprudential interpretation of constitutional liberties within Indian state over years is credited to (inspired by) the US jurisdiction, including that of freedom of speech. In Flynt v. Falwell4, the US Supreme Court clarified that no satire is defamatory if no reasonable reader can deduce it to be an assertion of fact, but that of mere opinion. Only satires 'outrageous' enough backed by inherent malice are punishable
While defamation is an attempt to pass off a malicious lie as truth, satire is simply humorous skewing of contemporary events or beliefs. Once a joke goes down the opinion chute it cannot qualify as defamatory humour. The difficulty most courts face is in differentiating fact from opinion. For this again, courts rely on the reasonable man's test. The legal community consists of numerous lawyers with varied perspectives; a reasonable viewer would appreciate the comedy set as mere opinion, not establishment of fact. In defamation suits social context is extremely essential – what may be humorous in one context may not be in another. The comedy set in Hasmukh was a part of a show described as 'cynical and offbeat' to be played at the convenience of the viewer, social context subscribing absolutely no role. Trust deficit against the legal community, as a whole is too broad an argument to establish inappropriate social context.
Indian courts have most often leaned towards protection of freedom of expression via art. In 2018, in N Radhakrishnan v. Union of India , the argument for banning a book was rejected stating "one may have a grave dislike towards a particular manner of expression but that does not warrant issue of mandamus from the court for ban of the book." The Indian Constitution protects the right of an artist to showcase social beliefs, opinions and reality in all forms, limited by public order, decency and morality. Creation of art cannot be supressed or gagged within the Indian polity. To rip artists off of this right is to take away their freedom of autonomy and self-determination It is important to look at the show as a whole – theme, characterizations and genre. Such frivolous action is undertaken with an inherent belief that a viewer is incapable of appreciating the character and reaching rationalized conclusions.
As things stand, we are faced with a larger dilemma; has India become a nation that can't take a joke? Is our society so morally fragile that contrarian ideas are immediately deemed outrageous and artists regularly persecuted using law as a weapon of retribution? We, the people, must ponder whether our purported ideals of democracy, free speech and pluralism are mere constructs of letter and not of spirit. At a micro level, it would be worthwhile to contemplate why people get offended in the first place. As individuals, we all have a set of values and beliefs, deeply entrenched in our idea of self. All humans are self-centred (read narcissistic) to varying extents. When a joke is made on these closely held value systems, some perceive it as a direct assault on their identity. Psychologists call this concept 'narcissistic injury'. It is an emotional vulnerability caused due to placing our sense of self-worth in the hands of others. Right to expression, at its core, attempts to negate these vulnerabilities. Taking offence is a personal choice. A joke may very well be in poor taste, unfunny, rude or ill-timed, but cannot be objectively offensive in itself. It is up to every individual to decide whether words merely meant as a joke are enough to provoke him. And even then, the individual has the option to simply press the kill switch and walk away. But using law as an instrument for curtailing voices is rarely justifiable. It essentially says you have the freedom to express as long as the joke is not on me. The intent is to stifle voices that dare hold seemingly opposing worldviews.
However, what is distressing on a whole another level is the business of taking offence on behalf of others. No one person has or could possibly have the moral authority to decide if a joke on lawyers has caused offence to the entire community of lawyers. Comedy like most art is subjective. What is vulgar and disrespectful to one may be downright hilarious to another. This nefarious assumption of a universal moral compass to get back at artists is far more damaging to society's moral fibre than any joke could ever be, no matter how outrageous.
At a macro level, we need a greater understanding of comedy as an art form, on one hand, and its relationship with societal values on the other. By design, comedy relies on sharp criticism, exaggeration and outrage to elicit laughter and awe. As George Carlin once said, "It's a comedian's duty to find the line and deliberately cross over it." Therefore, those looking to be provoked will always find plenty of scope to get offended. Comedy, by nature, works on the explicit premise that what is told is to be taken in a lighter vein. As a society, we need to come to grips with the idea that art intends to push the envelope and open up discussions on topics unfamiliar and uncomfortable, without pronouncing a judgment on the identity of an individual or a community. If in our country, even comedy cannot enjoy the safe haven of free speech, what hope is there for resolution of serious differences through dialogue?
Social institutions have always defined what appropriate and acceptable behaviour is. What people must decide is how they respond to those who challenge established social norms attempting to redefine its boundaries. The more severe the crackdown on these voices, the further we risk drifting away from the idea of a free nation. When browbeating of artists by resorting to hate speech, death threats and complaints becomes commonplace, it reveals our shocking lack of belief in concepts of free speech and peaceful disagreement. But for judicial intervention, it would be difficult to claim that the lofty ideals promised in our Constitution are little more than ink on a piece of paper. Society is ultimately nothing more than the collective psyche of its people. The strength of its moral fibre depends on how much every individual decides to be affected by perceived affronts. Ricky Gervais says it best. "There is no need to disarm the world. Just make yourself bulletproof".
Views are personal Only.
(The authors are practicing advocates in the Gujarat High Court and can be reached at email@example.com and firstname.lastname@example.org)
Indibility Pvt Ltd. v. State of West Bengal AIR 2019 SC 1918.
Flynt v. Falwell 485 US 46 (1988).
N Radhakrishnan v. Union of India AIR 2018 SC 4154