Tanmay Bhat is in trouble again for his questionable use of Snapchat. This time, he earned the ire of some of the more passionate supporters of Prime Minister Narendra Modi when his comedy collective, All India Bakchod, tweeted this picture meme-ing a puppy-face filter on to Modi. One mega-fan tagged the Mumbai Cyber Police, and voila: a First Information Report was filed against Bhat accusing him, of all things, of criminal defamation and obscenity.
I have no idea how to use Snapchat - I’m probably a living testament to Douglas Adams’s immortal laws - but I do know enough about the law to confirm that we live in especially tough times for satirists and comedians. They’ve always reckoned with the threat of violence and state action, but to have reality trump (hah!) their imaginations when it comes to the absurd must be a sore test of professional ability. You literally cannot make this up.
Here’s what you should know: for all their social media cuteness, the Mumbai police’s FIR against Bhat is utterly illegal. They might be better at using Snapchat than you or I, but in spite of individual exceptions, India’s police forces remain colonial relics, intent more on upholding the regime than on law and order. To paraphrase Edmund, Lord Blackadder, to Indian cops, the Constitution is just something that happened to other people.
The use of some combination of violence and state machinery to clamp down on speech is political party agnostic. It seems to bridge the left-right, secular-communal, savarna-OBC-Dalit, north-south, DMK-AIADMK divides in our politics. Some parties may do so more often than others while crying foul when they’re in the opposition, but commitment to free speech is absent in Indian politics.
(The other side of this coin is everybody’s unwillingness to undertake any real police reform in India. Without a police force that is re-built from scratch to act independently, in accordance with the law and constitution to preserve peace and order, the best drafted laws and constitution protecting free speech will fail.)
But threats to free speech in India don’t just come from political actors. Even if we ignore violent mobs, threats to free speech can come from corporates, billionaires and plain old kooks, thanks to our laws and judicial processes. India is one of the few countries in the world where you can still go to jail for defamation of private individuals. And for all that politicians get flak for taking advantage of this, businesses and powerful individuals have lost no opportunity to try and stifle criticism.
The Supreme Court even upheld the defamation law as recently as 2016 in an infuriatingly bizarre judgement. The court seems readily blind to the fact that it isn’t actually imprisonment, but the process that is the punishment. If you have deep pockets and patience, you don’t need to win the case, to win. This used to be IIPM’s litigation strategy to shut up critics who exposed their shady “education” businesses - until they ran into someone with the cumulative tenacity of an army of bulldogs who brought them down.
If you’ve followed the AIB fracas wondering whether it could happen to you, the answer is - maybe. Take the case of the publication you’re reading. Reviewers, even those on Yelp, have been sued by restaurant owners for extremely harsh reviews. On occasion, they have wonbecause the reviewers have slipped up on the facts. There is certainly nothing to stop an Indian restaurant from filing a suit against a pun they disliked, although the possibility of being at the receiving end of the Streisand Effect, or losing (even more) money in the labyrinth of the legal system, must be something of a put-off. Certainly, in an atmosphere where puppy-filters are criminalised, there’s nothing to stop someone from trying to bring frame charges against, say, a snarky summary of Mann Ki Baat.
Does that mean things are worse than ever? Right-wing governments do tend to be pricklier about dissent and ready to wield every tool they can shut up such voices; and it does feel that way in India right now. But, a new threat to free speech has emerged from the least expected quarter – the courts themselves. Witness the Aurangabad bench of the Bombay High Court ordering four cuts to Jolly LLB-2after it had been cleared by the notoriously scissor-happy Censor Board.
Sometimes, a busybody lawyer files a case on the flimsiest grounds, and it’s entertained by a court that gives little regard to propriety or law. Courts have also not been shy to use contempt powers against journalists and commentators to stifle criticism. Most worrying of all, in August we will have a Chief Justice of India who invented a new restriction on free speech under the constitution (which means you can’t make fun of “historically respectable personalities” like MK Gandhi), and compelled all Indians to stand up for the national anthem with no legal basis.
All of this sounds very depressing, but don’t lose hope yet. Consider the audacity of the imagination it took for the Constituent Assembly to try and create a multi-party liberal democracy in a country with no history of it, riven by every sort of division, and just recovering from a traumatic genocide. It has taken blood, sweat, tears and toil, to get this far and it will take more to keep it thus.
So go out there, educate, agitate, organise, and where need be, litigate to protect your right to free speech. You’ll find friends at the All-India Centre, PEN; Amnesty International (India); Common Cause;Software Freedom Law Centre; iProbono and the Internet Freedom Foundation, to name just a few.
Just don’t delete your work and blame legal expenses.
Alok Prasanna Kumar is a lawyer based in Bengaluru. He is the author of the 'Law & Society' column for the Economic and Political Weekly and tweets at @alokpi.
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