Guidelines on humour: Protection or a tool of control?

Cruel humour that ridicules disability is wrong, but state regulation on humour and speech is dangerous.

Humour is well taken and is a part of life. We laugh at ourselves. But when we start laughing at others and create a breach of sensibility…on a community plane, when humour is generated, it becomes problematic. And this is what so-called influencers of today should bear in mind. They are commercialising speech. The community at large should not be utilised to hurt the sentiments of certain sections. It’s not only freedom of speech, it’s commercial speech,” a Supreme Court bench said.

“Article 19... cannot overpower Article 21.” Suppose a race takes place between Articles 19 and 21, Article 21 has to trump Article 19.”

“Freedom of expression….cannot extend to commercial speech that offends or marginalises sections of society. Such expressions must come under scrutiny.”

A Supreme Court ruling of August 25, which directed five social media influencers, including stand-up comedian Samay Raina, to issue public apologies for mocking persons with disabilities, contains the above observations from the bench. It is these observations which are actually problematic, not what they describe as problematic. The ruling contains a directive to the government to frame guidelines to regulate speech on social media. This directive presents even more problems than the observations.

There are several formulations in these paragraphs which are fraught and contentious. One proposal is to restrain humour while claiming to accept its value. Another is to limit the scope of the right to freedom of speech and expression by positing it against another fundamental right — the right to life. If a distinction is sought to be made between humour that hurts and does not hurt, it is wrong.

It is certainly wrong to mock people with disabilities. Humour has to be human. But humour that is directed at a person with disabilities over a matter that has nothing to do with his or her disability cannot be said to be wrong. It cannot also be postulated that humour should not hurt the community. Humour, like art and literature and other expressions of freedom and creativity, has a function to hurt society.

It is a self-cleaning mechanism which society has developed to stay sane and healthy. This is a complex trait, and the law cannot lay down general principles about how to deal with it. Perhaps it can deal with individual cases of humour that can hurt or offend, as it has done now, on the basis of laws which already exist to protect individuals from unfair attacks. Of course, it is wrong to be insensitive, but the question is whether it is a legal offence to be so. 

Humour is sometimes tasteless. But taste is a subjective quality. One person’s taste differs from another’s. The same is the case with dignity. Humour or criticism can sometimes hurt this sense of dignity, which is often connected with the right to life.  That is probably why the court said Article 21, which pertains to the right to life, would trump Article 19, which pertains to free speech. This, too, is a faulty proposition since dignity, again, is a vague and subjective quality.

A law or enforceable guideline should not be formulated solely to protect taste or dignity or other sentiments because they are liable to curb free speech. Statutory laws cannot override constitutional guarantees. 

The ruling also says that commercial speech is not protected by the right to free speech. It considers comedians’ humour to be commercial speech because they earn money from their performance. The ruling practically adds commercial speech to the exceptions for the right to free speech listed under Article 19(2). However, the Constitution does not mention or recognise commercial speech, and the court cannot create a new exception.

The distinction between commercial and non-commercial speech is largely artificial.  All media, including print, television and online media, are commercial in a broad sense of the term, because most of them are supported by commercial entities. Newspapers are priced, and channels have their subscription models in place. Newspaper articles and television commentaries will also be deprived of free speech protection if the court’s proposition is accepted. 

The protection for free speech is not contingent on the nature, quality or intent of speech, the target of speech or the context in which it is made. Reasonable restrictions apply only to speech which involves the country’s sovereignty and integrity, public order and defamation. 

The Supreme Court has, in the past, held that commercial speech cannot be denied the constitutional protection of free speech. In 1995, Tata Press v. Mahanagar Telephone Nigam Ltd, the court ruled that commercial advertisements, such as those in a Yellow Pages directory, are a form of protected speech under Article 19(1)(a). It also said that public interest is involved in commercial advertisements. The ruling was given by a three-judge bench consisting of Justices Kuldip Singh, B L Hansaria and S B Majmudar while last month’s judgment was delivered by a two-judge bench. 

Social media regulation

The court also wants guidelines to be framed to regulate social media’s handling of humour and commercial speech. However, such laws already exist, such as those relating to libel and contempt. The Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021, empower the government to act against social media companies as well.

The very fact that the Supreme Court took up this case on the basis of FIRs lodged against the comedians under the Bharatiya Nyaya Sanhita (BNS) and the IT Act shows that prosecution is possible under existing laws. The court even found a judicial remedy by making the comedians tender an apology. Then why are fresh guidelines needed over the same issue? 

Humour, taste, dignity, and commercial speech are all grey areas for laws and rules. To let the government legislate and frame guidelines in these areas is to give it control over these grey areas and to allow it to weaponise such laws and regulations against citizens. If the government is the referee in the hypothetical race between Article 19 and Article 21, mentioned by the court, it will be the referee who will always win. If you give the government an inch, it will take a mile, and a smile and laughter can take you to jail. No one enjoys freedom who first has to consider what she should not say. That is the dictator’s mode, not the democrat’s way. 

The ruling and most of its observations do not advance the cause of freedom. The guidelines and regulations that the court told the government to frame will, unfortunately, have some legitimacy as the initiative came from the court. If they are based on the ideas of this ruling, they are bound to face severe challenges. The Supreme Court has, in the past, expanded fundamental rights, but this ruling seeks to shrink an important right. 

Chakyar koothu is a traditional satirical performance in Kerala. Chakyars, very much stand-up comedians of their times, explained stories from the Puranas humorously and made satirical comments about the world, gods and humans.  A Chakyar had absolute freedom of speech on the stage, and no one had the right to object to his comments during the performance. One Chakyar made fun of the cat eyes of the king, who was in audience. The king did not say a word. The next day, he called Chakyar to the royal court and asked him: "Now, Chakyar, who do you think you are?" Chakyar said, folding his hands: "A mouse before a cat, Your Highness." The king burst out laughing and rewarded the man. Both humour and state power had their way; freedom and power, in conflict, need not end in ill will, jail and blood. 

(AVS Namboodiri is a former associate editor and editorial advisor of Deccan Herald)