The Joke’s on Us: When Comedy Becomes Crime

The intersection of comedy, free speech, and legal boundaries remains a contentious issue, writes Areeb Uddin Ahmed.

Undoubtedly, people have opinions on everything, and with opinion comes outrage. The key question is whether the outrage is selective or adaptive.

(Photo: Kamran Akhter/The Quint)

Comedy, obscenity, and vulgarity are the three pillars that stand on the floor of expression, rooted in freedom and free speech. In today’s times, emotions can be hurt at any moment, by anyone, anywhere. And, in a country like ours, the response often comes as a cold serving in the form of an FIR.

As a set of comedians – performing a private show on a public platform – sparked a sensation across media houses, it led to an FIR being lodged against the organisers and multiple FIRs against YouTuber Ranveer Allahbadia.

The controversial joke made by Allahbadia had no impact on the contestant in the show – but it did provoke the public, including government officials who had once shared a stage with him and are now calling for criminal charges against him. 

Maharashtra Police is now investigating even those who attended and participated in the show, having summoned over 40 people, as per reports. This raises the question: while many are attacking comedy and its limitations, where do we draw the line?

Undoubtedly, people have opinions on everything, and with opinion comes outrage. So, the other key question is whether this outrage is selective or adaptive.

The Fragile Balance of Free Speech

In a democracy, the essence of free speech lies in its ability to protect even the most controversial expressions, as long as they do not incite violence or hatred. Allahbadia’s joke was undoubtedly crude and insensitive to many but offending alone cannot be the yardstick for criminalising speech. The moment we start punishing comedians or artists for pushing boundaries, we risk eroding the very foundation of free expression. 

Criminal charges against the organisers are not the solution. In fact, they set a dangerous precedent, making the State the arbiter of what is acceptable humour, which directly attacks the idea of free speech.

As Voltaire famously said, “I disapprove of what you say, but I will defend to the death your right to say it.” This principle must hold true even when the content is distasteful or provocative, as long as it does not cross the line into incitement or harm. 

At a time when there are far more pressing issues – economic challenges, social inequities, and governance failures – the targeting of comedians seems like a diversionary tactic to overshadow these critical concerns.  

Martin Niemöller’s poem First They Came serves as a stark reminder of what happens when we remain silent in the face of censorship: “Then they came for me, and there was no one left to speak out for me.” 

If we allow the State to silence comedians today, who will be next? The defence of free speech is not about endorsing every word spoken but about safeguarding the right to speak, even when it makes us uncomfortable.

The Legal Landscape

Under the Bharatiya Nyaya Sanhita (BNS), 2023, Section 294 deals with the sale of obscene material. The language of this provision remains unchanged from previous laws and includes the “display of any content in electronic form.” The question remains whether such an act will be covered under the new provision, a matter for the trial court to determine.

Previously, under the Indian Penal Code (IPC), 1860, Section 292(2) penalised the sale, hire, circulation, and distribution of any obscene material. The Cable Television Networks (Regulation) Act, 1995 also regulates television broadcasts that could provoke public outrage.

The Hicklin test, originating from Regina v. Hicklin (1868), initially determined what constituted obscenity, focusing on whether material could “deprave and corrupt” vulnerable audiences, particularly children.

However, in Ranjit Udeshi v. State of Maharashtra, the Supreme Court acknowledged that the concept of obscenity evolves over time and what might have been “obscene” at one point of time would not be so at a later period. The judgment refers to several examples of changing notion of obscenity and ultimately the court observed the follows:

"The world, is now able to tolerate much more than formerly, having come indurate by literature of different sorts. The attitude is not yet settled."

In the case of Bobby Art International v. Om Pal Singh Hoon, the top court moved away from the restrictive Hicklin test and observed that the material must be judged from the standards of “a reasonable, strong-minded, firm and  courageous person, and not from the perspective of weak and vacillating minds or those who sense danger in every hostile point of view.” 

In the 2014 Aveek Sarkar vs. State of West Bengal case, the Supreme Court was dealing with a publication having featured a photo of a nude couple in a magazine. In this case, there was a paradigm shift, from the Hicklin test to Miller test, which was used in the US, and says that the obscenity must be judged in the context of the work as a whole, rather than focusing on isolated passes or images.

Past Cases: When Comedy Became a Crime

In January 2016, comedian-actor Kiku Sharda was arrested for impersonating rape convict Gurmeet Ram Rahim Singh on a television show. Sharda, who spent a day in jail, was accused of “outraging religious feelings.”

A few months later in May, Tanmay Bhat, co-founder of All India Bakchod (AIB), faced criminal charges for a video where he impersonated cricketer Sachin Tendulkar and singer Lata Mangeshkar. According to the FIRs, he had "hurt public sentiments" at large.

While speaking about when comedy becomes a crime, one cannot forget comedian Munawar Faruqui's case. In January 2021, the comedian was arrested along with comedian Nalin Yadav and others in Madhya Pradesh, for allegedly for making jokes about Hindu gods. Reports suggest that it remains unclear whether he even made such jokes. He spent nearly five weeks in jail before the Supreme Court granted him bail.

A few months later, one of India's best-known comics, Vir Das, faced backlash for his show “I come from two Indias”, in which he highlighted societal contradictions and hypocrisy in India. Following the show, many accused Das of “defaming India” and filed FIRs against him.

Future of Comedy in India

These incidents highlight a troubling trend where public sentiment often overrides the principles of free speech, with jokes taken far more seriously than they should be.

The irony is stark: society remains largely unmoved by far graver injustices – convicted rapists being garlanded, undertrials languishing in prison, or political corruption – while outrage is reserved for comedians.

This selective sensitivity raises questions about our priorities as a society. Why do we turn a blind eye to systemic failures and heinous crimes, but rush to criminalise humour, no matter how distasteful?

It is a reflection of a skewed moral compass, where the weight of outrage is disproportionately directed at comedians rather than addressing the deeper, more pressing issues that plague our society. 

In the same show that sparked the FIRs against Allahbadia, there were instances of disability mockery and body-shaming, yet these went largely unchallenged. Why is outrage selective? Why are deeper, systemic issues ignored while comedians face criminalisation for their words?

Historically, sedition laws were used to curb free speech. While sedition has been abolished, the new BNS provisions are even more draconian.

The intersection of comedy, free speech, and legal boundaries in India remains a contentious and evolving issue. While comedians often push societal norms to provoke thought and entertain, the line between humour and offense is increasingly blurred.

Comedy is boundless – when it crosses the line, we call it ‘dark comedy’. But a joke should be taken as a joke.

It will make sense to recall what Justice Sanjay Kishan Kaul authored in his opinion in the judgment of S Tamilselvan v. Government of Tamil Nadu.

“What was not acceptable earlier became acceptable later. Lady Chatterley’s Lover is a classic example of it. The choice to read is always with the reader. If you do not like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary – what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered. If the contents seek to challenge or go against the very constitutional values, raise racial issues, denigrate castes, contain blasphemous dialogues, carry unacceptable sexual contents or start a war against the very existence of our country, the State would, no doubt, step in.”

Justice Sanjay Kishan Kaul

(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court. He writes on various legal developments. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)