In recent years, India has witnessed a troubling trend: the government repeatedly targeting comedians, and satirists for their critical comedy on political matters. The most recent episode involving stand-up comic Kunal Kamra has once again underscored the predictability of this pattern, where comedians face onerous legal action for poking fun at those in power. Such state overreach not only diminishes India’s stature but also raises serious concerns about freedom of expression and the role of criminal defamation laws in silencing dissent.
Predictable
Kunal Kamra’s latest run-in with the state is just another chapter in a long and tedious book of government-led attacks on comedians. The irony is palpable, so much so that the act of going after comedians has become a joke in itself.
Time and again, comedians are accused of defaming or insulting political figures, leading to legal troubles that serve more as intimidation tactics than legitimate legal action. Kamra, along with other comedians like Vir Das, and Munawar Faruqui, have faced bans, arrests, and court cases that highlight how limited the state’s tolerance for satire truly is.
Worse still, such state-backed intimidation has emboldened angry men that take matters into their own hands. From physical attacks on comedians to vandalising venues, to death threats online, mob violence has become a part and parcel of this comedic circus. Instead of condemning such actions, political leaders endorse this behaviour further deepening the culture of intolerance and causing a chilling effect all around.
What is criminal defamation?
At the heart of these legal battles lies India’s criminal defamation law. Under Section 356 of the Bhartiya Nyaya Sanhita, erstwhile 499 of the Indian Penal Code, defamation is defined as any spoken or written statement that harms a person’s reputation. If found guilty, the perpetrator can be awarded a punishment of up to two years in jail, fine, or with both.
The existence of criminal defamation laws in a democracy is already contentious. Several countries, including Sri Lanka, and South Africa, have decriminalised defamation. Instead, defamation claims are transferred to the civil arena, where remedies like monetary damages are prioritised. In India, however, the criminal defamation law is frequently used as a weapon against journalists, activists, and comedians. The government, instead of using it for legitimate protection of reputations, often deploys it to shield itself from criticism and scrutiny.
It is acknowledged that there is a fine balance to be maintained between protecting an individual’s reputation and freedom of speech. Acknowledging this equilibrium, the Supreme Court of India, in May 2016 in the Case of Subramanium Swami v. Union of India, upheld the constitutionality of the criminal defamation law, emphasizing that, a person’s right to freedom of speech has to be balanced with the other person’s right to reputation. Notably, the Court also observed that, “interest of the people involved in the acts of expression should be looked at not only from the perspective of the speaker but also the place at which he speaks, the scenario, the audience, the reaction of the publication, the purpose of the speech and the place and the forum in which the citizen exercises his freedom of speech and expression.”
This is a very important point while adjudicating criminal defamation claims especially in the case of comedy. Comedians typically offer exaggerations rather than claims of literal truth. And people know that when they enter a comedy circle. They come to be entertained not educated.
Political satire
The government’s hypersensitivity to criticism stands in stark contrast to how political satire is tolerated in other democracies. Interestingly, while the Trump administration has frequently attacked journalists and media houses for unfavourable coverage, shows like Saturday Night Live and the Tonight Show continue to thrive. Satirists like Steven Colbert, and Jimmy Falon have been relentless in parodying Trump and his administration, producing sharp and often brutal critiques without facing legal repercussions. So far.
Comedians play a crucial role in holding those in power accountable, using humour and satire to expose hypocrisy, corruption, and inefficiency. However, their efforts are not restricted to politicians alone. Comedians have used comedy as an instrument of social critique. They have gently, with humour, shown us the mirror, encouraging us to see the error in our ways. However, when the government, and by extension, its supporters treat satirist as an existential threat, we have to ask- are we taking ourselves too seriously?
The hypersensitivity of Indian politicians to satire and criticism does not just harm democracy, it also diminishes their stature. Political figures must recognise that criticism, even in the form of humour, comes with the territory of public life.
Humour also humanises politicians. Leaders who can laugh at themselves are often more likable and relatable to the public. In contrast, leaders who retaliate against comedians appear weak and insecure. Engaging in legal battles over comedy sketches or satirical songs is a self-defeating strategy. People should be allowed to vent their frustrations through peaceful means like satire and comedy. Isn’t laughter the best medicine after all?
Time to rethink criminal defamation
The continued misuse of criminal defamation laws underscores an urgent need for reform. Criminal defamation should not be a tool for the powerful to muzzle comedy. Instead, India needs a higher threshold for defamation cases involving public figures, ensuring that only genuine and severe cases move forward. Politicians, who enjoy vast public influence, should not be afforded the same level of legal protection as private individuals.
The Indian judiciary must step up. Courts have a crucial role in preventing the misuse of criminal defamation by dismissing frivolous cases aimed at silencing dissent. A more progressive approach, similar to the US standard enshrined under the case of the US Supreme Court case New York Times Co. v. Sullivan, would require public figures to demonstrate “actual malice”, proving that a statement was not just false but intentionally harmful, before claiming defamation.
While not related to criminal defamation, but relevant to point of comedy and free speech, Justice Surya Kant and Solicitor General Tushar Mehta, in the case of You Tube Star Ranveer Allahbadia, agreed that guidelines may be required to regulate speech. Justice Surya Kant ordered the Government to consult stakeholders, media professionals, and the public to gather inputs before formulating a framework. Although the discussion was with respect to vulgarity and free speech, it may be the impetus that is required to decriminalise defamation altogether, at the very least, effort can be made to ensure greater checks and balances are built in such that the threshold for their use by the state to curb free speech is much higher.
We have a long history of comedy and satire. R.K. Laxman’s the Common Man, Jaspal Bhatti’s Flop Show and Pankaj Kapur’s Office Office saw us through some of our worst times, with a smile. Unfortunately, today, as a country we are quick to take offence. Our circle for acceptance is shrinking. And we are evolving into a humourless and an intolerant society. A country that cannot take a joke is a society in decline. And it’s for the common Indian man to chart a path forward. Resistance can be a beautiful thing, and funny too.
Devyani Kacker is a lawyer working in the human rights and the non-profit space.
