Much commentary has emanated regarding the controversy involving comedian Samay Raina and podcaster Ranveer Allahabadia. Unfortunately, much of it evades first principles and fixates on (relatively) trivial issues; rather than the broad principles at play. This piece argues/posits that it is not only desirable, but imperative, to legally protect comedy which is morally repugnant/appalling.

At the outset, it must be stated: I found the controversial joke on ‘India’s Got Latent’ quite distasteful. The joke did not enrich the show, in any way, shape or form. As someone who is into what is labelled as ‘edgy’ comedy, I did not find the joke edgy; rather, I thought it was downright obnoxious. While we are on the theme of distasteful jokes, I found two other jokes – cracked by Samay Raina – more disturbing. First, where he makes fun of a poor child who is run over, on a rail track. Second, where he thought it was appropriate to be ‘funny’ about a 2-month-old child, suffering a rare disease. These ‘jokes’ cannot be countenanced within any reasonable framework of morally acceptable content.

Having stated that, I now advert to my core premise: as morally appalling as these jokes are, it is a constitutional – and moral – absurdity, how the might of criminal law machinery has been pressed into service, against Raina, Allahabadia and Apoorva Mukhija. Here is a crazy idea: let us confer legal protection on morally repugnant comedy! In other words, even if there is comedy which crosses the proverbial (moral) red line, it should not necessarily tantamount to the (legal) red line being crossed. To contend – and accept – otherwise would tantamount to a recipe for disaster; in as much as, it would grant draconian powers to the State, which are bound to be abused/misused at some point in future. One of the reasons why free speech has been granted an exalted status since Enlightenment (at least) is that it empowers the individual; even if she articulates an unpopular opinion. The innate beauty of the very concept of free speech is that the citizenry can flourish in an environment where there are no adverse repercussions for employing unpopular words/speech. The importance of written/spoken word cannot possibly be overstated. It is a condition precedent for the enrichment of human soul and society at large. A society where the citizen is petrified about adverse effects of free speech cannot possibly flourish. While reasonable restrictions are permissible under sub-article (2) of Article 19 of the Constitution, the same – being an enabling provision – ought not to be used liberally.

There is another analytical prism: the effects of morally repugnant comedy being (legally) protected are not worse than weaponsing the legal system against such speech. Since it is not possible for the legislature to accurately foresee all possible scenarios, we will inevitably have instances where there will be a question: whether a particular work of comedy falls foul of law or not. This state of affairs is, in and of itself an anathema in a robust democracy like ours. Democracy does not get weakened if a bunch of perverts derive pleasure in uncouth comedy. It does, however, suffer a blow when non-violent content creators – and their families - apprehend the proverbial knock on their door, by a police constable.

It also bears noting that morality is inherently subjective. While the State has a legitimate interest in outlawing/banning activities or practices which are profoundly disturbing, it should not be stretched to banning speech relating to those activities. It is difficult to fathom, how an argument can be constructed – on first principles – that the State (assuming it is not a nanny State!) has a rational interest in banning such speech. For instance: incest – only a lunatic would contend that it should not be banned. All civilized societies have accepted the elementary proposition that incest needs to be completely banned. Having accepted that, let us consider a scenario where a less-than-intelligent (I am being charitable!) comedian deems it apposite to crack incest jokes. While we can – and we must! – boycott such artists, arresting such a lunatic would serve no discernible purpose.

One of the reasons why America became the greatest nation in human history is the first amendment to the U.S. Constitution; which enunciates the doctrine of free speech absolutism. It is that degree of legal protection which allowed neo-Nazis to take out a rally in Skokie (near Chicago), in the decade of 1970’s; not long after the biggest mass murder of 20th century transpired. In this context, the judgment of the U.S. Supreme Court in the case of National Socialist Party of America vs. Village of Skokie (Skokie judgment) makes for fascinating reading; in juxtaposition with the order of the Illinois Supreme Court. The said judicial orders capture the broad factual matrix. Skokie was resident to more than 40,000 Jewish survivors of the Holocaust. In that village, neo-Nazis insisted on taking out a rally, wearing the Nazi uniform, displaying Nazi symbols and undertake distribution of Nazi material. Naturally, the residents of Skokie sought an injunction against the said rally. Notwithstanding the moral repugnancy of the rally, U.S. Supreme Court pronounced that the abhorrent actions of the neo-Nazis would be protected by the contours of first amendment to the U.S. Constitution. If that state of affairs can be accepted, surely we – as a society – must take in our stride, the lame jokes of young content creators.

As it relates to comedy, in particuazlar, it is bound to push boundaries. Even if that results in the (moral) red line being crossed, it should be (legally) countenanced. By all accounts, George Carlin and Dave Chappelle are the greatest comedians of all time. If one endeavours to compile a list if their indiscretions, the list would be reasonably long. Nonetheless, they brought immense joy to millions of people across the world; and shall continue to do so, for decades to come (through their body of work). These content creators (like Raina, Allahabdia et al) are not defined by their errors of judgment; but by their holistic body of work, which is imbued with brilliance. Comedians play a significant role in human society. We, as a society, have a profoundly moral duty to protect and preserve free speech in the realm of comedy. To imagine a society without humour is to imagine heaven without God.

- Avin Chhangani is a practising advocate at Rajasthan High Court.