Comedian Munawar Faruqui’s show scheduled in Bengaluru on November 28, 2021 was cancelled by the organisers on advice from the Bengaluru Police that the show “could create chaos and could disturb the public peace and harmony which may further lead to law and order problems” based on “credible information that several organisations are opposing this stand-up comedy show.” The police did not cite any provision of law under which the performance could be prohibited, nor did they wait for the show to start to assess the risk posed by the “several organisations” they referred to. In January this year, Mr. Faruqui was arrested at a venue in Indore even before he could perform his set. The arrest came after a complaint from Eklavya Singh, the son of a BJP MLA, who accused Faruqui of making fun of Hindu deities and Home Minister Amit Shah. The alleged jokes, however, were not made at all. Mr. Faruqui spent over a month in prison before he was granted bail . Subsequently, comedian Kunal Kamra’s shows in Bengaluru were cancelled for similar reasons. These incidents demonstrate how the marketplace of outrage is growing, fuelled by groups addicted to the high of being offended, with the tacit support of the executive. Comedians have become fair game for vicious troll armies. Matters have escalated now to such an extent that the danger is not just online but involves threats to disrupt shows.
Succumbing to the heckler’s veto
The reaction of the police in preventing such performances reflects a growing acceptance of the heckler’s veto, which allows the state to prevent speech/expression when individuals and groups opposed to such speech/ expression commit or threaten to commit acts of violence in reaction to it. By succumbing to the heckler’s veto, the state suppresses the speech/expression that is potentially disruptive rather than protecting those whose speech is under threat from the hecklers.
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In India, the heckler’s veto gets legal sanction from exceptions in Article 19(2) of the Constitution which permit the state to make laws imposing reasonable restrictions on the right of speech and expression in the interests of ‘public order’ and ‘incitement to an offence’. These exceptions gave a new lease of life to various colonial laws suppressing speech and expression, such as Sections 153A (promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) and 295A (outraging religious feelings of any class by insulting its religion or religious belief) of the Indian Penal Code.
A chilling effect on expression
Courts have disapproved of the executive bowing down to the heckler’s veto in several cases involving films that offended various groups. In 2019, the Supreme Court, while examining a ‘shadow ban’ on a film in West Bengal, stated that “the police are not in a free society the self-appointed guardians of public morality.... They cannot arrogate to themselves the authority to be willing allies in the suppression of dissent and obstruction of speech and expression” ( Indibily Creative Pvt. Ltd. v. Govt. Of West Bengal ). In the context of Padmaavat (2018), the apex court cast a duty on the State government to manage the law-and-order situation whenever a film is exhibited. It said that it is the government’s responsibility to protect the persons involved in the exhibition of the film and the audience watching it, if necessary.
However, the contestations over offence rarely reach the courts; they usually play out on the streets or on the Internet. The ease with which the executive capitulates to offended groups has created a marketplace of hurt rather than a marketplace of ideas that the right to speech and expression was intended to create. Legal scholar Harry Kalven aptly said that “[B]y giving the police wide discretion to stop the speaker because of audience hostility, the state... in effect transfers the power of censorship to the crowd. Moreover, the police are likely to share the views of the angry audience; hence, their perception of the unrest may be coloured by their assessment of the speaker’s message.”
These incidents also indicate that the executive has excessive power to regulate speech. This can be viewed as a broader tendency to confront problems of multi-community, multi-religious democracy through censorship rather than debate and discussion. The consequence of these developments will be a chilling effect on future expression. Even if a court of law overturns such a ban, the prospects of pretrial incarceration and a lengthy trial are sufficient disincentives for comedians not to put out material that could be perceived as offensive to any group. In the long run, we face the disturbing prospect of the police becoming gatekeepers over what content reaches the public domain and what does not.
Leah Verghese is with DAKSH, a non-profit based in Bengaluru
