The Supreme Court on August 14 quashed all FIRs against stand-up comedian Samay Raina and four others over controversial remarks concerning persons with disabilities made on the comedy show India’s Got Latent.Raina’s case is among a series of recent legal battles involving stand-up comics in India, which has ignited a debate on where to draw the line between humour and criminality, and what exactly is to be considered ‘obscene’, ‘immoral’ and ‘defamatory’.Comedy is one of the most loved genres in performance arts, and its most essential purpose is to amuse the audience. The word is said to have originated from a Greek verb meaning “to revel” or enjoy oneself in a lively and noisy manner, especially with drinking and dancing. But comedy has long served a larger purpose beyond entertainment itself. It often addresses people as social beings rather than as private persons, holding up a mirror to society and allowing it to reflect on its own shortcomings.From the court jester to stand-up gigsWritten in India about 2,000 years ago, the Natyasastra– a Sanskrit treatise on the performing arts – elaborates on the hasya rasa, the science of laughter and the sentiments of humour and mirth. A central figure was the vidusaka, the traditional court jester in Indian history and Sanskrit dramas. Despite being the king’s closest, most trusted friend and personal adviser, the core task of the vidusaka was to make the audience laugh by combining physical comedy with intellectual wit.The two most celebrated vidusakas of Indian history, Tenali Raman and Birbal, had the privilege of openly mocking the king, criticising royal policies, and pointing out the ruler’s flaws or arrogance without any fear of execution. They were the “voice of the common man” inside a royal court, using humour to keep absolute power in check.Today the focus remains on the vidusaka. But the present-day stand-up comedian has a different set of challenges. The target is no longer just the king or his ministers but a diverse crowd, even as social media has extended the reach of comedy and made louder the questions it raises about morality.Also Read | Supreme Court’s comments on obscenity in OTT make us think again: What is obscene?Over the past five years, legal tussles involving stand-up comics like Munawar Faruqui, Kunal Kamra, Vir Das and Samay Raina have drawn considerable attention to stand-up comedy amid allegations that its content is ‘objectionable’, ‘vulgar’, ‘obscene’, ‘immoral’ and ‘defamatory’.Story continues below this adWhat is considered obscene, immoral or defamatory?Obscenity, immorality and defamation do not have a single and strict definition in Indian law, but are punishable through various provisions in central and state laws. For instance, both obscenity and immorality are now primarily punished under sections 294 and 296 of the Bharatiya Nyaya Sanhita, 2023 (sections 292 and 294 of the Indian Penal Code, respectively).BNS Section 294 punishes the sale, public exhibition, and circulation of any material which focuses excessively on sexual matters and can destroy the moral purity of a person, while Section 296 punishes any person who sings, recites, or utters any obscene song or words in a public place.Similarly, the Information Technology Act, the Indecent Representation of Women (Prohibition) Act, the Cinematograph Act, the Cable Television Networks (Regulation) Act, the Post Office Act, and the Customs Act, 1962 penalise obscenity. States like Tamil Nadu and West Bengal give authority to the police and magistrates to ban obscene public plays or theatrical performances.Defamation, on the other hand, is unique because in India it can be treated as either a criminal or a civil offence. The BNS regulates criminal defamation and provides punishment for it. If a person has been defamed, they can either file a criminal case or a civil case depending on whether they want the person at fault to be punished or seek compensation from them.Story continues below this adSuch allegations are usually countered with the defence of ‘freedom of speech’. Article 19 (1) (a) of the Indian Constitution provides the fundamental right of freedom of speech to every citizen of the country, enabling them to voice their thoughts, opinions, and convictions without worrying about consequences from the government, censorship, or legal repercussions.However, this freedom is not absolute. Article 19(2) of the Constitution allows the government to impose “reasonable restrictions” on free speech on grounds like a threat to the security of the country, public order, decency, morality, and defamation.“But the fact is that what constitutes public disorder or what could result in a public disorder itself is problematic. There are several communities in India today who are ‘professional objectors’ to everything,” says advocate Ameet Datta.Since there is no strict definition for “reasonable restrictions” when it comes to decency, morality, and defamation, judges decide cases through precedents and the context of the situation, which is where stand-up comics and their content get stuck.Story continues below this adAccording to the case records, the accused had gotten into a heated argument and “hurled abusive slurs” at the victim over an ongoing land dispute. While evaluating the abusive words and their dictionary meanings, the apex court held that “these definitions clearly show that words may be insulting, offensive or unpleasant without necessarily being obscene in law”.Then comes social media.Datta sums up the problem: “I’m pretty sure comedians were there since time immemorial, but with social media, perhaps the bounds of decency or the bounds of what one would say to somebody – those general rules have stopped applying for a long time. Anonymity allows people to say many things.”“It’s quite ironic that the very platforms meant for a free interchange of views have been sources of people being less tolerant of each other’s views,” he adds.Here’s a look at some recent cases that put the spotlight on the legal questions surrounding comedy:Story continues below this adMunawar Faruqui’s arrest in IndoreOn January 1, 2021, stand-up comedian Munawar Faruqui was arrested along with four others after the son of a BJP MLA complained against him over alleged objectionable remarks made against Hindu deities and for hurting religious sentiments at a show in Indore.Senior Advocate Saurabh Kirpal, who appeared before the Supreme Court for the comedian, says, “Faruqui had uploaded certain YouTube videos, and there were some allegations about certain comments that outraged the religious feelings of Hindus. But nothing was done when the YouTube video was uploaded. Some months later, when he went to Indore for a stand-up comedy show, people barged into the show, which was stopped, and he was arrested there. The Supreme Court granted bail after he had spent over a month in custody.”Opinion | As Indian comedy evolves, so does the battle over its limitsFaruqui, Kirpal says, was charged for intentionally making a statement to outrage the feelings of a religious community, and in a separate FIR filed in Uttar Pradesh, was blamed for promoting enmity between different religious groups. According to Kirpal, the phrase “outraging the religious sentiment of any community” has not been defined, and “the only check is that there must be a requirement of mens rea, which is a deliberate and malicious intent to insult a religion. That’s the only safeguard.”“I think it’s a bit difficult because it has a chilling effect on free speech, because as long as you don’t know what the offense constitutes, how, as a stand-up comic or indeed a normal citizen of India, you navigate what you can say. You are unclear because you may cross the boundary of humour to criminality without knowing or being fully aware of it,” he adds.Story continues below this ad Senior Advocate Saurabh Kirpal and advocate Ameet Datta discuss how ambiguous legal boundaries can leave comedians unsure about when exactly humour turns into criminality. (AI-enhanced image)Asked how the law categorises something as obscene, immoral or defamatory, he says there are no “strict definitions” for the terms, along with “complete subjectivity” in the law. “It’s okay if you have ambiguity. That means there is a freedom to decide whether something is or is not obscene, although the moment it becomes criminal, you need to have certainty in the law because, as I said, you’re making a joke and you don’t know when it strays accidentally into the realm of criminality.”Defamation case against Vir DasIn 2020, a bunch of advocates filed a defamation case before the Delhi High Court against Netflix and stand-up comic Vir Das, seeking a stay on streaming of the web series Hasmukh, particularly episode 4 of season 1, which they claimed contained “derogatory remarks” against the entire legal fraternity.The allegedly offensive dialogue, translated from Hindi, is as follows: “This is the first city I’ve seen where even the thieves are incredibly wealthy. But here, they aren’t called thieves; they are called ‘lawyers’… These custodians of the law will never get arrested… People say the law is blind, but I say the law is filthy, because every lawyer wields a little stick in his hand.”The remarks were alleged to be “a constant stigma on the image of lawyers and a constant source of annoyance to the plaintiff and has lowered the image of lawyers and the plaintiff amongst the public at large”.Story continues below this adAfter hearing the arguments of senior advocates Amit Sibal and Sandeep Sethi, the high court noted, “…the stand of the defendants is that the web series is a work of fiction, the story thereof and statements made by the characters, including the impugned content is only meant to be taken in the context of a figment of imagination and humour and not as a matter of truth”.While dismissing the case against the comedian, the Delhi High Court took the view that “people do not view the comments or jokes made by stand-up comedians as statements of truth but take them with a pinch of salt with the understanding that it is an exaggeration for the purposes of exposing certain ills or shortcomings.”“The very essence of democracy is that a creative artist is given the liberty to project the picture of the society in a manner he perceives. One of the prime forms of exposing the ills of society is by portraying a satirical picture of the same. Stand-up comedians perform that very purpose. In their portrayal, they use satire and exaggerate the ills to an extent that it becomes a ridicule,” the court had concluded.Samay Raina and India’s Got LatentThe Supreme Court on August 14 quashed the FIRs against Raina and other content creators over controversial remarks on India’s Got Latent concerning persons with disabilities.Story continues below this adThe events leading up to the FIRs were summed up as “a common incident of allegedly obscene comments and expressions which were circulated as part of a comedy series published on the internet.”An NGO working with persons afflicted with Spinal Muscular Atrophy (SMA) had filed one of the cases, accusing Raina and other comedians of “demeaning persons with disabilities, including those suffering from SMA” through several videos. The Supreme Court had allowed the comedians to “show their repentance in the shape of events aimed at raising funds for the benefit of persons with disabilities”.While closing the case, the top court acknowledged that through various events, Raina, along with other comedians, had raised Rs 12.55 lakh and were willing to donate it to the NGO.Quashing the other FIRs, the Supreme Court had observed that “important larger issues regarding the scope of regulation of speech on internet-based social media remain to be dealt with. In our considered opinion, those issues can be taken up by this Court in another appropriate case, while the Criminal Writ Petitions can be disposed of”.Senior Advocate Aparajita Singh, who appeared for the NGO, explained that though “Samay had made fun of SMA patients, which was objectionable and violated their dignity”, the case was not targeted at him but for guidelines for regulation of social media content like those that exist for cinema, along with guidelines for the disabled.Singh says the ideas of obscenity, morality and defamation are heavily dependent on the “evolution of society” and “march of civilisation”, and it is “impossible to give a general definition” as the cases are context specific.The law already provides definitions sufficient to decide such cases, as “legal minds are trained for such situations,” she says, adding that arguments and decisions could also draw on the “view of contemporary society” and the “test of a reasonable person”.What tests do courts rely on?Despite the absence of a fixed definition, Indian courts decide on matters pertaining to obscenity, immorality, defamation, and hurting religious sentiments with the help of precedents or previously decided cases and certain ‘tests’.For obscenity and immorality, earlier the Hicklin Test was used, where the material alleged to be ‘obscene’ or ‘immoral’ is evaluated by its potential to “deprave and corrupt those whose minds are open to such immoral influences”. So something could be called obscene even if a small portion of it could possibly ‘corrupt’ people, and the courts could declare an entire work obscene based on isolated passages. This test later went out of use because, firstly, it did not make any allowance for literary, artistic, educational or scientific value, and secondly, it focused on the impact on the most vulnerable, impressionable or sensitive members of society.Currently, judges use the Contemporary Community Standards Test, the premise of which is simple: allegedly obscene or immoral materials are evaluated as a whole from the perspective of an “average prudent person,” and a careful distinction is drawn between ‘mere vulgarity’ and ‘obscenity’.Column | Why Indian consumer law holds doctors accountable, not lawyers“Hurting religious sentiments” is treated like a dish. One needs to see if all the ingredients are present for it to be cooked. Primarily, there has to be a deliberate and malicious intention to hurt sentiments, and the material itself is judged by evaluating whether there is a connection between the material and the public disorder caused as a result of it (the Proximity Test). It is also evaluated whether the hurt caused would affect a reasonable person.In defamation cases, the most important condition is whether the insulting material lowers the image of the person in the eyes of “right-thinking members of society generally” and whether the statement is true.Besides these tests, the court also relies on the context of the problematic material and the situation in which it was being observed, read, or heard by the people.When process becomes punishmentHowever, court cases and trials are not the problem; the lack of a fixed definition in criminal law causes harm at the very beginning itself. Kirpal says the judgments do exist, “but the point is that having precedent is a matter that is determined only at the ultimate stage of conviction. A police officer who is arresting you for any statement before grant of bail is not going to examine the niceties of the legal provisions before you are arrested.”“You see, the problem is the process of the punishment. You may ultimately get acquitted, but that is of little use when you have lost months and months,” he says.Datta agrees, “It is not the case itself, but the process being the punishment. It leads to a chilling effect from a broader perspective on other speech which might be critical, which might be on the border of acceptance but then is affected because nobody then wants to take a chance and get their head in a noose because the process is the punishment.”He then brings a crucial question to the table: “Assuming a police inspector acting at the behest of a local politician files a case and provisions against a stand-up comedian on the grounds of obscenity, the matter goes to trial, and the person is acquitted. Where is the accountability for that police officer who filed that case?”“The point of freedom of speech is not protection of opinions that you and I agree with. It is the protection of opinions that you and I don’t agree with; may even violently disagree with,” Datta emphasises.In July, in a case involving allegations obscenity, the Supreme Court said, “Words which are merely vulgar or abusive may evoke a feeling of disgust, revulsion or shock, but that by itself does not make them obscene in law. It is for this reason that this Court, through various judicial pronouncements, has held that the use of abusive, vulgar or profane language does not necessarily constitute obscenity.”The case of stand-up comedian Pranit More, who faces FIRs over the “Rs 370 biryani” comment controversy, is another example of how stage humour — regardless of its specific nuances — can turn into a legal tangle. With the Supreme Court issuing notices to state governments over his plea to club various FIRs, the situation reflects a reality where comedy acts no longer stay behind closed doors; they travel far online and eventually end up in courtrooms.