By: Mayank Kohli & Ravi Singh Chhikara
In a free society, each and every individual has a right to create and receive the genre of entertainment of his choice. Similarly, a stand-up comedian has a right to create jokes of his choice and his audience has aright to receive such jokes without any impediment. However, a recent case surfaced in which a stand-up comedian namely Munawar Faruqui and his associates were arrested for allegedly hurting religious sentiments by making indecent remarks against Hindu deities at his comic show. It has raised an academic question that whether the jokes of a stand-up comedian, made merely to entertain people can be regarded of such a nature which could qualify the ingredients of an offence of hurting religious sentiments defined under Indian Penal Code, 1860 (hereinafter ‘IPC’).
Hitherto, no test has been formulated by judicial precedents to examine the criminal liability of a stand-up comedian owing to his jokes tending to insult religious beliefs of a community. To address this question, the article first examines the true intent of the legislature behind the enactment of Section 295-A, IPC along with the judicial precedents that have established the essential ingredients of Section 295-A. It then proceeds to examine whether the jokes of a stand-up comedian could constitute the penal offence of Section 295-A.
Intention of the legislature
Till the year 1927, India had no law on blasphemy. However, the in the case of Rajpaul v. Emperor  and afterwards, the Allahabad HC in Kali Charan Sharma v. Emperor expressed the need of penalizing the act of offending religious sentiments of a community. Consequently, Section 295A was added into IPC for the same. In the case of Ramji Lal Modi v. State of U.P., where the constitutional validity of Section 295-A was challenged, the Supreme Court held that Section 295-A was enacted only in the interests of ‘public order’. Thus, the intention of the legislature provides one qualification that is the offending expression must have the tendency to disrupt the public order or, in other words, the state has to show close proximity between comedy and public disorder in order to constitute the offence.
Judicial precedents that framed the other essential ingredients
Besides the prima facie ingredients set out by legislature in Section 295A IPC, the judicial precedents have added more qualifications for an expression to be characterised as the offending expression. The Supreme Court has held that it penalizes only the ‘aggravated form’ of insult to religion . Further, it attaches criminal liability only when the act is committed with a ‘deliberate’ and ‘malicious’ intent of outraging the religious feelings of a class of citizens. More importantly, the Court has observed that the expressions would not constitute an offence if they were made ‘unwillingly’ or ‘unintendingly’. Thus, the expressions made carelessly, unwittingly and without any deliberate and malicious intention to outrage the religious feelings of any community would not constitute any offence. Most importantly, the court observed that the speaker must have the “sole, primary or at least the deliberate and conscious intention” to hurt the religious sentiments of a community. So, it does not contemplate every insult to the religious sentiments of a community as deliberate and malicious.
Moreover, the expression should be such which can be regarded as “grossly offensive and provocative” by a reasonable person. It has been observed that the “effect of the words used in the offending material must be judged from the standards of reasonable, strong-minded, firm and courageous men, and not those of weak and vacillating minds..”. Further, the intention of the speaker has to be viewed from the “surrounding circumstances” having regard to the “setting, background and connected facts in relation to the offending article”. Thus, the expression must not be viewed in isolation. It must be viewed from a broader perspective.
The foregoing discussion clearly puts forth the qualifications for characterizing an expression as an offending expression. So, the offending joke of a stand-up comedian has to pass these tests. It must be the one which has the tendency to disrupt the public order and is an ‘aggravated’ form of insult to a religion. It must be ‘deliberate’ and ‘malicious’. It must not be ‘unwilling’, ‘unintended’, ‘unwittingly’ or ‘carelessly’ made. The speaker must have the sole, or primary, or at least the deliberate and conscious intention to insult the religious beliefs of that community. The expression must be examined from the eyes of a reasonable person in a broader perspective and not merely from a few solitary lines or quotations.
When the stand-up comedian’s jokes are not covered under section 295A IPC
The offending expressions of a stand-up comedian can be said to fall into three categories. Firstly, an accidental blasphemy where the speaker has no knowledge of the offending content of his stand-up. Secondly, an intentional blasphemy or deliberate and malicious blasphemy where the speaker has a specific mens rea as required by section 295A IPC. Thirdly, somewhere between the two i.e. light hearted or satirical blasphemy where the speaker understands that he or she is mocking the sacred or religious feelings but with the intention of creating humour.
Applying the tests enumerated by judicial precedents, a stand-up comedian whose jokes fall into first and third category cannot be made liable under Section 295A IPC even if they are of the nature which could hurt the religious sentiments of a community. Prima facie, the jokes of a stand-up comedian can be regarded as the ones which could hurt the religious sentiments of a particular community. However, if a “proximate link or nexus between the statement and disruption of public order is missing” or if the link is “fanciful or remote”, a comedian cannot be held liable for the offence.
The primary objective of this offence is to stop and suppress the mischief of any incitement to imminent lawless action rather than punishing the individual for hurting religious sentiments. Further, true import and intention of the speaker can be gathered from looking at the complete speech and not by focusing on a particular portion of the stand-up. Usually, the objective of stand-up comedy is to make people laugh at that moment and the speaker does not engage himself in any serious business by commenting on religion. Therefore, it is of paramount importance that some level of literary freedom must be enjoyed by them in order to do their job, which is also conducive to the promotion and development of art. So, where a comedian chooses a subject like religion, his primary and basic intention cannot be to hurt religious sentiments of a particular community which is an essential element to make him liable for the offence.
Moreover, the Bombay High Court has held that “healthy criticism of religion provokes thought, encourages debate and helps us evolve. But criticism cannot be malicious and must not lead to creating ill-will between different communities” and a comedian never claims that his jokes are “the truth” or reality, in fact they are merely his perception or observation of a societal norm, with the avowed motive of producing humour.
It should also be kept in mind that stand-up comedians like Munawar Faruqui are public figures and their careers are solely dependent on their popularity amongst the public, and no sensible person would axe his own feet by intentionally trying to outrage the religious sentiments of a majority religious group of the country.
Thus, only when the jokes fall into second category, it can be said to have passed the tests enumerated by judicial precedents. The preceding para clearly shows that the case of a stand-up comedian depends upon many factors. A court has to apply its judicial mind to determine the category in which the offending expression of a stand-up comedian falls. As mentioned in the previous para, a stand-up would never wish to lose his audience, thus, rarely does it happen that the jokes of a stand-up comedian can be said to have fallen into second category.
The legal scholars have correctly observed that “the purpose of the blasphemy law is to curb religious violence by curbing provocative speech. But the strategic field the law put into place worked differently. It extended the strategic value of demonstrating that passions had been aroused that threatened the public peace, in order to induce the government into taking legal action against one’s opponents. Section 295A thus gave a fillip to the politics of religious sentiment”.
However, at the same time, it cannot be denied that the politics of the country still exploits the religious identities of individuals and groups. Therefore, it becomes natural that some kind of restriction on the individual freedom of speech is required to safeguard the religious sentiments of different sects in our multicultural state. Thus, the speeches that might have a “tendency” to lead to public disorder could be proscribed and penalized.
However, ‘humor and comedy’ should be given higher degree of protection under the head of ‘freedom of speech and expression’ because it penetrates the society on a much deeper level and catches the eye of a large population as the same is intriguing and entertaining. It helps in challenging the corrupt moral standards, rudimentary norms and developing a society which is more diverse and progressive. Clearly, a fair criticism of religion and its practices through satirical comedy does not fall within the clutches of Section 295A and the reformative approach towards the religion must be kept alive.
AIR 1927 Lahore 590.
R.V Bhasin v State of Maharashtra2012 Cr LJ 1375 (Bom) (FB).
(Mayank is a practising advocate in the High Court of Delhi and is also pursuing his LL.M. from Faculty of Law, Delhi University. Ravi is a final year law student in Campus Law Centre, Delhi University. They may be contacted via mail at email@example.com)
Cite as: Mayank Kohli and Ravi Singh Chhikara, ‘A Stand-Up Comedian and His Criminal Liability Owing to Jokes Insulting Religious Beliefs of a Community’ (The RMLNLU Law Review Blog, 6 June 2021) <https://rmlnlulawreview.com/2021/06/06/a-stand-up-comedian-and-his-criminal-liability-owing-to-jokes-insulting-religious-beliefs-of-a-community/> date of access