Film federation to summon Dera Sacha Sauda chief
N S Nappinai
In a nation where comedy is prime-time preoccupation, this small room in Andheri made for an unlikely scene brimming with comic actors and artistes who sat there lacking the mirth that bring alive screens both big and small.If every joke has a target, Kiku Sharda became a victim of his own after the comic was handcuffed by the Haryana police for his spoof on Dera Sacha Sauda chief Gurmeet Ram Rahim Singh on a television channel a fortnight ago.
Sharda was arrested under Section 295 (A) of the Indian Penal Code for “deliberate and malicious acts, intended to outrage religious feelings“, produ ced in court and let off on a bail bond of Rs1lakh.
“It seems we all should keep anticipatory bail han dy as we don’t know when and what may offend who,“ said Amit Behl, actor and jo int secretary of CINTAA, le ading the contingent of artistes Renuka Shahane, As hutosh Rana, Vrajesh Hirjee, Lubna Salim, Salim Arif and others, that came out on Monday evening to voice concern and protest against harassment from keepers of the law promising strict ac tion in few days.
Sharda, who was in Morada bad shooting, joined in briefly on Skype, and said, “I felt very alone and scared those three days. I apologized for my act not becau se I was scared, but my intention is never to hurt anyone.“
An incident that has resulted in increased nervousness and possibility of greater threat to the creative realm with guardians of politi cal correctness keeping a close eye, the artistes condemned the vagueness of a law that risks misinterpretation, abuse and hangs on them like the proverbial Damocles sword. “Therefore, it needs to be revisited or repealed,“ protested Ashish Rego, treasurer, Federation of Western India Cine Employees (FWICE).
“Kiku is representative of all of us. Tomorrow any of us could be in his place and we don’t want a repeat of what happened. If any adverse judgement is passed against him, we will not take it lying down.We will shut down, if necessary, until the system is corrected,“ stressed Rego.
The fear of a larger threat prompted collective action by FWICE and its 22 affiliates, including the Cine & TV Artistes Association (CINTAA), which decided to take action in few days. They will file a writ petition in the Bombay high court against Section 295 (A), which they feel is a broad and vague ambit that endangers the creative community , followed by a petition before the state government and chief minister, see king “immediate safety and security for our members and workers as we provide a broad revenue stream to the government. We have every right to be safeguarded in every way“.
The film body intends to summon the Dera chief, who is a member of CINTAA, to Mumbai before the joint dispute settlement committee “to settle the matter with Kiku, the show’s producer and the channel. His gang took away one of our boys. Now, he will have to come,“ assured Behl.
Comedy , often perceived as inconsequential and a mere instrument of fun, can be the lightest way of serving up the necessary commentaries on life and Sharda’s arrest poses a greater threat to urgent and necessary comments in future, said Yogesh Kamdar, human rights activist. Parody , satire and humor walked into a bar and got benched. AIB is getting roasted and Kapil’s Palak is wilting -all for want of a simple smile. Humor is going into hiding and those harboring it hurting sentiments. There is no humoring historical figures, godmen or of course the politicians par excellence.The gregarious Sardar is waiting in the wings for the courts to bestow a protective shield against the assault of the Poor Jokes. Stand up comedians need a sit down dharna to protect their right to irreverence and insouciance.
Free Speech and Stifled Humor
Roasting the roasters, which is now trending, makes comedy very serious business and stand up acts hazardous occupation. It is not just the possibility of criminal defamation that the comedian runs the risk of but also prosecution for creating communal violence under section 153A of the Indian Penal Code (IPC) or offending religious sentiments under section 295A, IPC. The Supreme Court is not only deciding on the constitutionality of criminal defamation provisions under IPC but has also admitted a Public Interest Litigation (PIL) contesting the right to host sardar jokes online.
The four pillars upholding the need for freedom of expression, recognized by the Supreme Court are individual self fulfillment; discovery of truth; participation in decision-making; and reasonable balance between stability and social change. Article 19(2) of the Indian Constitution tempers the free speech right guaranteed under Article 19 (1)(a) with restrictions now deemed reasonable. The first category is wide enough to encompass humor in all of its facets, including poor and intemperate jokes.
Article 10 of the European Convention of Human Rights recognizes restrictions similar to Article 19(2). Yet the European Court advocated the same degree of pluralism, tolerance and broadmindedness for offensive, shocking or disturbing content, as for inoffensive information or ideas, in support of a democratic society.
The Supreme Court however struck a blow to satire (which may have been in bad taste), within a few days of upholding free speech by striking down section 66A of the Information Technology Act, when it held against alluding or symbolically using a historically respected personali ty to voice obscene content. It rejected the threshold laid down by the European Court of Human Rights for satire, which had pardoned an obscene and unsavory Apocalypse in the name of artistic expression and social commentary , which had resorted to exaggeration and distortion of reality to provoke and agitate. The Supreme Court held that the contemporary community standards test was of a higher degree, whilst applied to historically respected figures.
When it came to political figures, however, the Patna high court upheld free speech by refusing to injunct release of Ram Khilawan (CM) N Family , a strong and pungent satire of political leaders, holding that legitimate creation cannot be suppressed on grounds of intolerance of a section of people or for a hostile audience, in a democratic country.
Sanction under Law
Protection against arbitrary invocation of section 153A & section 295A IPC, was built in through the need for prior sanction under section 196 CrPC, either from the central or State government.Further mere hurt sentiments alone are insufficient for initiation of criminal prosecution. It has to be demonstrated that a person insulted a religion or religious beliefs deliberately and with malicious intent to outrage religious feelings of any class of citizens of India. Hence both deliberate and malicious intent are needed to invoke the Rangeela Rasul-inspired inclusion to IPC.
Kiku’s case appears to have been filed under section 295A IPC, which requires prior sanction. News reports do not clarify if the State machinery played a hand in granting the same for punishing a joke or if the police travelled miles to arrest the jester for the crime of killing satire. Either way , the punitive action taken, indicates that the checks placed on invocation of the above powerful provisions have clearly failed.
Resuscitate (humor) in Peace should be the new mantra. After all, as the song goes “don’t you know everyone wants to laugh? (Donald O’ Connor in Singing in the Rain). There has to be more leeway for humor unlike the thresholds for example, obscenity or sedition. Like fundamental rights are fundamental to a free republic, free laughter, without exercising those exclusive lacrimal (tear) glands in excess is existential for humans.
Law has to be interpreted and applied such that liberties have plenary play , subject to constitutional boundaries.The duty to ensure punitive action against hate speech and protecting against excessive oppression by bigots of creative expressions, is cast on the State machinery , which power has to be exercised without fear or favor.The State, in India, is secular and ought not to take sides with one religion or other, which is prevalent in our pluralistic society , to repress or suppress human creativity .Such public power ought to be exercised not to placate the orthodox many or to suppress the heterodox few but to ensure free speech, which does not traverse the line of permissibility .
The writer is an advocate practising in Mumbai & Delhi