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The lawlessness of humour

The courts will work their processes in the ‘AIB Roast’ case, but it is very rarely illegal to tell a joke, or a whole series of them, to listen to one, disseminate or laugh at one. The law does not criminalise a joke. The law cannot allow itself to be used as an instrument of suppression, of a citizen’s right to speak sense or nonsense

In Stalin’s time, god had been abolished and farming collectivised. A Soviet farmer was asked by a central commissar how good the potato crop was. The farmer answered, “If all the potatoes produced on our collective farm were gathered into a mound, the mound would be so tall that it would reach the feet of god.” The doctrinal correct Commissar snarled, “There is no god, comrade, you know that.” The unperturbed reply came, “there are no potatoes either”.

This joke illustrates Freud’s point in the 1908 paper, “Jokes and Their Relation to the Unconscious,” where he saw jokes as telling the secrets about ourselves to ourselves and the world that we do not necessarily want to tell.

As I read about the storm gathering against the ‘All India Bakchod roast’, which has now culminated in a Bombay magistrate’s court ordering an FIR to being filed against the organisers and participants of the show, it is time to examine the facts dispassionately, because all of a sudden, humour has become deadly serious business.

Integral to cultures

A comedy roast is an event where a celebrity consents to be laughed at. His friends, peers, acquaintances and enemies gather to insult him and provide general merriment to those gathered around. Money collected from the paying audience is often given away to a charity of the celebrity’s choice. A roast is an occasion for the celebrity to be brought down a peg or two, for him to be able to laugh at himself and to, all in all, show, that he is a good sport who can have a joke made at his expense.

This tradition of roasting grew out of the comedy clubs in America and drew inspiration from a street game called ‘The Dozens’ which is often played on the streets in black majority areas in the United States. ‘The Dozens’ is a game of spoken words where participants insult each other until one gives up. It is played in front of an audience of bystanders who encourage the participants to reply with matching and bigger insults to heighten the tension and make it more interesting to watch. Serious research exists connecting ‘The Dozens’ to a Nigerian game called Ikocha Nkocha, which when literally translated means “making disparaging remarks”. Similar games have been noted in Ghana where insults are frequently directed at family members. The need to laugh at and be laughed at is integral to many cultures. After all, as Jane Austen wrote in Pride and Prejudice, “For what do we live, but to make sport for our neighbors, and laugh at them in our turn?”

On December 20, 2014, in an event that raised around Rs.40 lakh for charity, two Bollywood actors, Ranveer Singh and Arjun Kapoor, were roasted by other members of the glitterati, with Karan Johar officiating as the 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. Other attendees included Alia Bhat, Deepika Padukone and Sonakshi Sinha. By all accounts, the roast was a huge success. Neither did the persons roasted take offence to the insults nor did any paying member of the audience want his money back on grounds of obscenity or otherwise. Everybody had a good time, threatened no one and raised money for good causes.

The jokes ranged from the risqué to the rude. Like the stuff in all good professional comedy, some jokes did make viewers drop their jaws in disbelief (“Did he really say that?”), howl with laughter, grit their teeth in anger and wince with shock. But for once, celebrities got people to pay to watch their celebrity status get insulted. The trading of insults humanised them and elevated the audience by enabling it to seemingly look down on them.

Taking offence

Yet, like every fairy tale, it was those who were left out who took the most offence and caused the most trouble. The hitherto unknown Brahman Ekta Seva Sanstha was first off the block to file an FIR at the Sakinaka police station. A Catholic organisation filed a civil suit for damages while a criminal complaint by a law professor resulted in a magistrate’s direction to launch a criminal investigation. These two proceedings were filed through the same lady lawyer, who cannot be accused of being a publicity hound, because she is a well known television commentator. The Bombay High Court was petitioned to look into the controversy. The matter has not reached the Supreme Court as yet, through a meddlesome interloper or officious busybody!

While the courts will no doubt work their processes in due course, a few obvious legal truisms must be stated. It is very rarely illegal to tell a joke, or a whole series of them. It is not illegal to listen to a joke. It is not illegal to disseminate a joke. It is not illegal to laugh at a joke. The law does not criminalise a joke. You can laugh at the world and you can laugh at yourself. It is perfectly legal to do so.

Like obscenity, humour is very difficult to define, is subjective and is a matter of taste. Even phrases from various statutes that criminalise some aspects of speech are delightfully vague and use adjectives like “grossly offensive”, “sexually coloured” and “obscene”. Just as lawmakers have struggled to define these offences, so too have judges who have applied these standards to actual cases. The dilemma is best exemplified by Justice Potter Stewart’s claim in the U.S. Supreme Court, in the 1964 case, of Jacobellis v Ohio, where he defined pornography as “I know it , when I see it.”

While lawmakers and administrators have difficulties in defining or restricting speech, people who seek outrage find it very easy to get outraged at almost anything that anyone says beyond the bounds of politeness. What if the joke is hurtful of someone’s sentiments? What if the joke is obscene? What if the joke provokes a riot? Can someone not be made accountable for a joke that is in poor taste, or disrespectful? These and other such like questions seem to agitate the minds of the grand-inquisitors of humour.

What the law says

In law, the answer is simple. There is no general right to take offence at the contents of another person’s speech in a private environment. It is only when the speech is in a public place, or causes annoyance to others in a public place that criminal law is attracted, as in Section 294 of the Indian Penal Code. If a joke is specifically defamatory of one’s personal reputation, that person alone could go to a civil court to collect damages. If the speech was deliberately aimed at insulting a religion, it may be criminally actionable under Section 295-A. If a joke is aimed at sexual harassment, it may be actionable by the victim alone under the newly created Section 354A of the IPC.

What needs to be emphasised here is that each of these sections is designed with a specific affected person in mind. That person alone must be permitted to set the law in motion and no other. Nobody has a general right to take offence at another people’s jokes, at other people’s expense. Except the person who is directly impacted, no one else should be granted locus standi, with respect to a joke or its teller. No third party should intervene to save the honour or reputation of any person or class of persons, who wink at or laugh at a joke made at their own expense. It is only when there is a personal stake, in the sense of a loss of reputation or harassment, should the law be set in motion. Even here, civil proceedings for damages should normally be resorted to and criminal proceedings discouraged. In other words, if I choose to let my friends and family laugh at me as a lawyer, no other lawyer or family of lawyers must be allowed into the court to take umbrage on my behalf, if I do not wish to resort to the law.

The law cannot allow itself to be used as an instrument of suppression, of a citizen’s right to speak sense or nonsense. It is time for the law to protect what the poet Faiz wrote in his poem, ‘Bol’ (Speak)

“Speak, for your lips are free,

Speak, for your speech is yet your own,

Speak, for the truth is till now alive,

Speak, for your life is still your own.” (Translation mine)

(Sanjay Hegde is a practising advocate in the Supreme Court.)

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Printable version | May 26, 2020 8:08:54 PM | https://www.thehindu.com/opinion/lead/the-lawlessness-of-humour/article6922444.ece

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