It’s a scary prospect to consider — the death of a beloved fictional character. However, in case of Santa-Banta, it may happen. More than 5000 websites, print and other media publishing jokes on Santa-Banta could be banned!

The news comes following the report that the Supreme Court of India has accepted a public interest litigation (PIL) which seeks a ban on jokes on the Sikh (Sardars) community.

Arguments for the ban:

  1. Such jokes portray the Sardar community as the people of low intellect;
  2. They violate their right to equality with fellow citizens;
  3. They are an attack on the dignity of the community; and
  4. Such jokes amount to racial abuse and hurt religious sentiments.

Arguments against the ban:

  1. The differences which lie at the core of our diverse democracy should be cherished and the associated idiosyncrasies — real, exaggerated or even imagined — of every community must also be celebrated.
  2. The Sikhs are not the only group who are the subjects of parody.
  3. Mumbai’s “mad bawas”, Kolkata’s “kanjoos Maadoos”, Goa’s “maka paos”, “wily Malayalis”, the ‘theplas’ of Gujaratis, and the list goes on, are also the subjects of satire.

The Supreme Court observed:

Many Sikhs do not mind such jokes and take these sportingly (as they should). These statements are mostly casual humorous statements and are not intended as an insult. Still, the court has agreed to examine the issue.

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What if the ban is upheld?

Self-proclaimed representatives of every community — Bengalis, Marathis, Gujaratis, etc, who are capable of getting offended by the pettiest of things — will queue up and overload the judiciary with petitions seeking similar bans.

And if all such cases are upheld, then soon we wouldn’t be able to make jokes about anything. No matter what you say, someone, somewhere will get “offended”, and assume his narrowmindedness is the hallmark of every single person of his sect.

The list of “jokable” things is already pretty thin in country, and it would be a shame to see it disappear altogether.

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What does the law say?

Humour, parody and satire are forms of freedom of speech and expression, a fundamental right guaranteed under Article 19(1)(a) of our Constitution.

  • Restrictions imposed on this freedom are keeping in mindthe  sovereignty and integrity of the country, security of the state, friendly relations with foreign states, public order, decency and morality, contempt of court, defamation or incitement to an offence.
  • Section 153A of IPC provides for what constitutes an offence under hate speech — a writing or an utterance intended to promote feelings of enmity or hatred between communities.
  • Section 295A of IPC punishes acts intended to outrage religious feelings.

So the question is: do these jokes qualify under any of these parameters?

The freedom of speech and expression, under our Constitution, is the quintessence of our democracy. This spirit has been corroborated when the Supreme Court quashed petitions seeking unreasonable censorship on issues such as pornography.

However, with the acceptance of the PIL, the court would have to examine whether such jokes fall under any or all of the restrictions imposed under the law.

On its face, such jokes do not threaten public order, decency and morality. Neither do they constitute contempt of the court. Certainly, they do not threaten the sovereignty and integrity of India.

Such parody also does not amount to defamation for they are directed not at identifiable individuals but a whole community.

There’s also the matter of the context of these jokes. Where are they used and to what effect? if they are not causing a feeling of religious supramcy, and consequently of hatred, can they truely be categorised as “acts intended to outrage religious feelings” ?

The case for proscription only exists if free speech transgresses its boundaries and enters the realm of hate speech or offends religious feelings. 

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As Justice Sachs observed in the Laugh It Off case:

A society that takes itself too seriously risks bottling up its tensions and treating every example of irreverence as a threat to its existence. Humour is one of the great solvents of democracy. It permits the ambiguities and contradictions of public life to be articulated in non-violent forms. It promotes diversity. It enables a multitude of discontents to be expressed in a myriad of spontaneous ways. It is an elixir of constitutional health.”

Where (if at all) to draw a line is now in the domain of the Judiciary. Its wisdom and its fine sense of judgement are at a test again.


Further reading: The Indian Express, The Times of India.

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