Outlook's Rani Jana discusses the recent controversy surrounding comedian Kunal Kamra in a conversation with Shahrukh Alam, a Supreme Court lawyer, researcher, and social activist.
Alam emphasizes, “The problem with hate speech is not that it is causing offence, but that it’s causing material and systemic discrimination.”
She also discusses where we draw the line between comedy and offence, and if Kunal’s comedy should really be considered offensive.
As she navigates the complexities of free speech, she also points out that if somebody on the margins is attacking somebody in power, that’s a very different nature of speech, even if it’s offensive.
Watch the full video and find out: Can we laugh in dark times without offending?
Reporter: Rani Jana
Illustration by: Saahil
Editor: Sudhanshu
#KunalKamra #KunalKamraControvery #FreeSpeech #ShahrukhAlam #PoliticalSatire #FreedomofSpeech #Censorship #DarkHumour #DarkComedy #standupcomedy
Alam emphasizes, “The problem with hate speech is not that it is causing offence, but that it’s causing material and systemic discrimination.”
She also discusses where we draw the line between comedy and offence, and if Kunal’s comedy should really be considered offensive.
As she navigates the complexities of free speech, she also points out that if somebody on the margins is attacking somebody in power, that’s a very different nature of speech, even if it’s offensive.
Watch the full video and find out: Can we laugh in dark times without offending?
Reporter: Rani Jana
Illustration by: Saahil
Editor: Sudhanshu
#KunalKamra #KunalKamraControvery #FreeSpeech #ShahrukhAlam #PoliticalSatire #FreedomofSpeech #Censorship #DarkHumour #DarkComedy #standupcomedy
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NewsTranscript
00:00Hate speech is really a majoritarian problem.
00:03Somebody on the margins can't indulge in hate speech against somebody who's in power.
00:08That's the nature of hate speech. It's to do with power.
00:15Hi, I'm Rani Jana and today I'm speaking with Shahrukh Alam, a Supreme Court lawyer.
00:21Beyond her legal career, she has worked as a social activist,
00:26policymaker, field researcher, and also a professor.
00:30Today we'll be discussing the legal and constitutional aspects
00:34of censorship, political satire, and the recent controversies
00:38surrounding comedians like Kunal Kamra.
00:41Hi Shahrukh, welcome to Outlook Talks.
00:45Thank you so much for taking the time to speak with us.
00:47So Kunal Kamra's remarks have reignited the debate on the limits of free speech.
00:55I think one of the most prominent questions that everyone wants to know is
00:59that are there possible legal charges that Kamra might face?
01:04You know, this whole incident of Kunal's comedy show
01:10should not have ignited this debate at all to my mind.
01:13I want to start with that.
01:15We should not have to invoke freedom of speech and expression at everything we utter.
01:21It's a given that this speech is protected.
01:24We should not have to be invoking this right of ours every time.
01:28And I'll elaborate on that.
01:30Article 91A of the Constitution gives us the right of freedom of speech.
01:35So there is protected speech normally, right?
01:38The default position is that speech is protected.
01:41Now, there are certain exceptions in 1902, right?
01:46So there is a category of restricted speech,
01:49which is carved out of the default position, which is protected speech.
01:54And what are those exceptions?
01:56So 1902 says that restricted speech would be speech that in some way endangers the sovereignty
02:05and integrity of India, for instance.
02:07So that is a danger to the security of the state.
02:10All that comes in the way of friendly relations with foreign states.
02:15Now, these are, again, very broad categories.
02:18And they're liable to be interpreted in very broad terms or in very narrow terms, right?
02:24For instance, protests against Israel or protests in support of Gaza are being stopped.
02:32And one could say that it fits this category of friendly relations with foreign states
02:37because it's coming in the way of our relations with Israel.
02:39But according to me, that's also a very conservative interpretation
02:43because we're also very friendly with Palestine.
02:46So according to me, that's not a good ground.
02:50Default position is protected even when the state invokes these things.
02:54That's when we need to push back, right?
02:56The other categories of restricted speech is public order, which is, again, very broad.
03:02So if you're disturbing public order, then that becomes restricted speech.
03:06But there again, the state is not supposed to invert the whole thing and say, well,
03:11you know, if you say this, some people will be hurt.
03:14Because this whole thing, public order, has to be interpreted
03:18from the perspective of a reasonable person, a prudent person,
03:22not somebody who has a thin, you know, very thin skin who gets offended at the drop of a hat.
03:28That's not what it means.
03:30Then another category is incitement to violence.
03:35So if you're actually inciting someone to be violent, that is restricted speech.
03:40There's another category of restricted speech that draws from traditions of blasphemy.
03:46And that draws from traditions of sedition.
03:50And the thinking is that you'd better not be saying something about the king or the church.
03:56Now, don't say things about the state.
03:58Don't say things about God, right?
04:01But it is very much part of the legal tradition.
04:03Now, to my mind, when there are cases of blasphemy,
04:07alleged cases of blasphemy or alleged cases of sedition,
04:10that's when we need to invoke the freedom of our freedom of speech and try and push back,
04:16keeping in mind that these traditions of blasphemy
04:20have a historical, a social and a legal context, right?
04:24Also keeping in mind that as the Supreme Court of India has laid down in the case of Amish Devgan,
04:30it matters who's saying what and who it's directed at.
04:34And the Supreme Court has said that when somebody who's in a position of power,
04:38political power, social power, economic power,
04:41is making that speech and targeting somebody on the margins,
04:45then that speech has a very different connotation, right?
04:48And inversely, when somebody on the margins is attacking somebody in power,
04:53then that is a very different nature of speech,
04:56even if it's offensive, even if it's hurtful.
04:59So the first is actually marginalizing speech by targeting you,
05:04by making fun of your religion, your faith, your culture.
05:08It's not just causing offense.
05:10It's trying to push you to the margins.
05:12So there is that difference and the Supreme Court has recognized it.
05:16So in the context of some recent cases of blasphemy,
05:19it has to be kept in mind, what is the context?
05:22Is there purpose to the humiliation?
05:24What does the humiliation do to the community that it's targeted at?
05:28Does it constitute hate speech rather than just blasphemy speech?
05:32Now, having said that, there is another kind of speech also,
05:36which is dissenting speech, which critiques the government in power
05:42or which critiques majoritarian tendencies.
05:44And to my mind, and also Supreme Court has endorsed this,
05:48that is not hate speech because it can't push power to the margins, right?
05:53That's the inverse of it.
05:55Now, having said that, when we equate what Mukul Sharma did,
06:00that there's a constant comparison, blasphemy in her case,
06:04and now people are saying that,
06:05why can't we invoke freedom of speech in every case?
06:09There is a difference.
06:10In that case, we could have invoked freedom of speech.
06:13We could have said that, let's analyze blasphemy laws together.
06:17Let's see what was the purpose of this.
06:20Let's see whether it was mere blasphemy
06:22or whether it was hate speech causing discrimination.
06:25But we are not doing that by comparing that speech to Kunal Kamra's speech.
06:29In fact, what we are doing is,
06:32we are really expanding the scope of blasphemy.
06:35Blasphemy traditionally is to do with faith, right?
06:38Now, we are saying that even the prime minister,
06:42or the home minister, or the chief minister can be blasphemed against, right?
06:47So, even in drawing that comparison,
06:50while we are invoking freedom of speech, we are doing the opposite.
06:54We are really making broad the scope of blasphemy laws,
06:57which are a colonial legacy, which need to be reconsidered.
07:01But we are reiterating, we are expanding them.
07:04And again, in the response of the state, there is a big difference
07:11in the way that the state has responded to Kunal Kamra's incident, etc.
07:16Which again, sort of tells you about the positionality of power,
07:21which is very, very important to the given context.
07:25And when you are investigating blasphemy, you need to see the context.
07:29Was it done to humiliate?
07:32Or was it done for some other reason?
07:34Was it done to actually question?
07:36If it was done to actually question, we need to push back.
07:39In terms of citizens and public order,
07:45in S Rangarajan's case, the court had very categorically said that
07:51your speech itself should be like a spark in a powder keg.
07:56There should be proximity and a causal link between the speech and actual violence.
08:02If there's no violence, or if violence happens later,
08:05then there's no proximity, there's no causal link.
08:08So there are all these preconditions for your speech to be restricted
08:12for reasons of public order and violence.
08:15And therefore, the heckler's veto.
08:18The heckler's veto means that I don't like something that you are talking about.
08:22And therefore, I'll heckle and I'll threaten disorder.
08:26The heckler's veto is not a legitimate cause to ban speech or to restrict speech.
08:34I want to also talk about the ethics of laughter,
08:38about the politics of laughter and the ethics of laughter.
08:40And I think that when you're feeling politically in a corner,
08:45when you're feeling that there is some degree of authoritarianism,
08:48laughter is a very good way to push back.
08:52Laughter is distinguished from humiliation.
08:54There is a big difference.
08:56And I think I completely endorse the politics of laughter.
09:00Dress did say, whether will there be singing in dark times?
09:04Will there be laughter in dark times?
09:06And I want to say there must be laughter in dark times
09:09to enable us to get out of those dark times.
09:12You spoke about laughter and humor.
09:16Given that humor is subjective and audience perception matters,
09:21how does the law differentiate between genuine offense
09:26and politically motivated outrage or reaction?
09:32Politically motivated outrage, even if it were politically motivated,
09:38which is the allegation against Trump, it's still not an offense.
09:42Even if he sat with the opposition, whoever they are,
09:45and wrote his script together with them, even then it's not an offense
09:50because in doing that, what you're actually doing
09:52is again expanding the scope of blasphemy.
09:55You're suggesting that the opposition is blaspheming
09:58against these political figures by making fun together with Gunal Kamra.
10:02And you're also suggesting that these figures now embody state security
10:07and you can't even make fun of them.
10:09So legally, even if the opposition has written the script
10:12and given it to Gunal Kamra, it's not an offense.
10:16You're absolutely right in saying that it is very subjective.
10:19Humor is subjective.
10:20So you can find something boring.
10:22I mean, a lot of standard comedy is frankly just boring.
10:25It's very boring.
10:25You can't get through it, which doesn't mean it has to be banned.
10:29Mostly there's bad humor, right?
10:31Mostly there is humor that's sexist, humor that's offensive in many ways.
10:39But we need a wider spectrum.
10:41We need to be reasonable.
10:42We need to be prudent.
10:44We don't need to acquire such thin skins.
10:47In those cases where we need to talk about how liberally
10:51we'll interpret public order or decency or morality,
10:57we need to give it some leeway, right?
11:00That's a question of interpretation.
11:02That's a question of drawing a spectrum.
11:03My next question was like,
11:05does the Indian judicial system have a legal framework
11:09to protect comedians or satirists from censorship?
11:14Like is political satire explicitly protected under Indian law?
11:20In Indian legal jurisprudence, case law for instance,
11:24we have given more leeway to satire.
11:27We've gone through ups and downs where sometimes
11:29we are very prudish about these things.
11:32At other times, not.
11:33We give comedians, satirists, that kind of space.
11:37It's been a constant.
11:39Some of our best writers have been dragged to court for their written work.
11:43We have the example of Isma Choktai, for instance, and Manto
11:46who were tried for obscenity in their writings in 1944.
11:51And they refused to apologize,
11:55but they were finally acquitted after a long drawn trial.
11:59And then we have the example of Khawaja Ahmed Abbas
12:03who'd challenged the powers of pre-censorship of films
12:09before the Supreme Court.
12:10And the Supreme Court upheld those powers,
12:13allowing censorship for restricted reasons.
12:17So that was a setback, you can say.
12:21And then again in 2015,
12:24I remember the case of Toja Purkar
12:28who'd written a very nasty poem about Gandhi
12:32and was being tried for obscenity.
12:37And he'd come up to the Supreme Court
12:38asking for criminal charges to be quashed against him.
12:43And the Supreme Court said that
12:46use of indecent language against historically respected figures
12:51is an offense.
12:52So he will have to face trial.
12:55But at the same time, all these various files and stories
13:02that have been coming out in quick succession,
13:04Kashmir files and Kerala story and the JNU file, et cetera,
13:10they have not been censored at all.
13:15They have been challenged once or twice in the courts,
13:17in the constitutional courts,
13:19but the courts have granted them freedom of expression.
13:23So it is not consistent.
13:25It's not consistent at all.
13:28I wanted to bring up Ranveer Alavadia's case.
13:31Of course, it is different from Kunal Kamra's case
13:35because he was accused of obscenity and given a gag order.
13:40So does the law treat political dissent and obscenity the same way
13:45or are there different standards of-
13:48I should think they're different.
13:49I should think Ranveer Alavadia's case would probably fall
13:54under the category of restricted speech of obscenity and decency morality.
14:00They'd argue that it's indecent, it's against public morality.
14:04And again, that needs to be interpreted.
14:07I'm arguing that there should be a wider spectrum.
14:10But political satire, which was really not offensive
14:14because the allegations are not that it's indecent or immoral or obscene.
14:18The allegations are that how could you bring these names?
14:22So it's framed almost like a blasphemy offence
14:26or a national security offence.
14:28Drawing in the opposition saying it's a political conspiracy.
14:31But political conspiracy to do what exactly is not clear.
14:35So it's being framed not as obscenity or indecency.
14:39It's being framed in those terms.
14:40Where does the legal line exist between offensive humour and hate speech?
14:47Have Indian courts provided a clear test?
14:50No, they haven't.
14:51They haven't at all.
14:53But there are some cases from the European Union, there are cases from Africa
14:58where this is being evolved, this particular jurisprudence.
15:03And it is said that hate speech is not a problem of offensive speech.
15:08The problem with hate speech is not that it's causing offence.
15:11The problem with hate speech is that it's causing very material
15:15and very systemic discrimination.
15:17It builds up, it's accumulative.
15:19So you keep saying something, it builds up over time
15:22and it pushes a section of people to the margins.
15:26Also, I must say offensive speech can be between equals.
15:30I say something to you, you get offended.
15:32Hate speech is really a majoritarian problem.
15:35Somebody on the margins can't indulge in hate speech against somebody who's in power.
15:41That's the nature of hate speech.
15:42It's to do with power.
15:44But law has not drawn that line yet.
15:46Perhaps that could be a difference between blasphemous speech
15:51of the kind that Mubasharma made and Kunal Kamra's speech.
15:55You know, it's said about laughter, about satire,
15:58that it's funny only if it's making fun of power, not if it's reiterating it.
16:03That is a difference.
16:05I just want to quickly touch upon also the accusation of defamation.
16:10That is a predominant...
16:12The strange thing is that the police has filed a defamation case against Kunal Kamra,
16:18which should not stand alone,
16:19because it's a private grievance defamation.
16:21You've said something about me.
16:23One of them has to come up and file it,
16:25but the police has filed it on their behalf.
16:27But also interestingly, truth is a defense to defamation.
16:32So if Kunal Kamra is able to prove that all of what he said is true
16:36or has the probability of truth,
16:38there's no defamation case to be made.
16:40And also all that he said is in public interest for public good.
16:44Then again, no defamation case is to be made.
16:46Section 356 of BNS states that even ironic remarks can amount to defamation.
16:54So can Kamra's jokes about Ekna Chinde allegedly be classified as defamation?
17:02The former CM will have to decide.
17:04The former CM will have to take a call because really,
17:07if at all it's a breach, it's a personal breach.
17:11It has to be a personal grievance.
17:13So he'll have to see where he stands vis-a-vis the remarks that were implied against him.
17:18Whether there is a ring of truth or whether they were in public interest,
17:23whether he thinks that there is enough of an implication to drag him in.
17:27But these are decisions that the former CM will have to make.
17:31And in the two minutes clip where he mentioned the word
17:36Gaddaar while he was singing this song from Dil Toh Pagal Hai,
17:42there is no mention of the former CM's name.
17:46During the clip, it is assumed by the party workers as well as the former CM
17:53has also commented on it.
17:55So what do you have to say about the fact that there is no mention of his name
18:00and yet there is so much going on around it?
18:04Normally, in-law and implication is enough.
18:07But it has to be an implication where the person being defamed
18:12believes that there is no scope for any doubt in the third party's mind that it is him.
18:18So then again, it's for the former CM to decide
18:21whether there is any scope for any doubt in anyone's mind
18:24when that Gaddaar is meant to be him.