The monologue ‘Two Indias’ performed by Comedian Vir Das is a burning topic of debate and discussion in the country since the video was released on 15th November 2021, on his YouTube channel ‘Vir Das COMEDY’. The said monologue was performed at the John F Kennedy Centre for Performing Arts; Washington D. C. (United States).The comedian is seen to have used analogies that are generalized in nature thus found by some to be misrepresenting the 1.38 billion Indian population on an international level. Some of the alleged defamatory and objectionable statements from his monologue in particular are; “… I come from an India were the AQI is 9000…; …where we worship women during the day and gang rape them at night…; …where we scoff at sexuality and yet F*** till we reach a billion people…; …where journalism is supposedly dead…; …where we bleed blue every time we play green but every time we lose to green we turn orange…; …where old leaders will not stop talking about their dead fathers and young leaders will not stop following their living mothers; …where we take pride in being vegetarians and yet run over the farmers who grow our vegetables …; etc.”
Exercising my right of free speech, following is the analysis ofthe monologue from a constitutional and criminal lawperspective to understand whether it is indeed defamatory and seditious in nature or not.
DEFINITIONS
The Oxford Advanced Learner’s Dictionary defines the word ‘Comedy’ as, “Professional entertainment with jokes, short acts, etc. that is intended to be funny” the synonym of which is ‘Humour’ whereas antonym is ‘Tragedy’. A comedy that is realistic, hard-hitting, and brings prevalent societal conditions to attention through satire and social commentary, is always praised and lauded but when the same hurts the sentiments of others, it ends up being misrepresentative, and becomes defamatory. In this context, it is worthwhile to consider: What is the cure? Who is to blame? Have a certain group of netizens turned intolerant? Or has the freedom granted by the Constitution being misused?
Articles 14, 19, and 21 of the Indian Constitution forms the core of Fundamental Rights bestowed upon an individual. Articles 14 guarantees, Equality before law and equal protection of the laws, Article 19(1)(a) guarantees, The right to freedom of speech and expression, while Article 21 guarantees, Protection of life and personal liberty. The combination of these three forms the basis of every argument be it the accuser or the accused.
RESTRICTIONS
Often the reasonable restrictions provided under the Clause 2 of Article 19 itself are not paid adequate attention to. The reasonable restrictions empower the State (Country) to restrict the rights of an individual in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence. In the present case public order, decency or morality along with defamation has to be analysed.
In the 1964 case of Ranjit D. Udeshi V. State of Maharashtra, it was held that it is necessary that a balance should be maintained between “freedom of speech and expression” and “public decency or morality”; but when the latter is substantially transgressed the former must give way.
In the 1989 case of Bal Thackeray V. Shri Prabhakar KashinathKunte, it was held that the ordinary dictionary meaning of decency’ indicates that the action must be in conformity with the current standards of behavior or propriety, etc. and was not only limited to sexual morality.
In S. Khushboo v. Kanniammal, 2010, it was held that the different views are allowed to be expressed by proponents and opponents not because they are correct, or valid but because there is freedom in this country for expressing even differing views on any issue. An expression of opinion in favour of non-dogmatic and non-conventional morality has to be tolerated as the same cannot be a ground to penalise the author.
Public order, decency, and morality as reasonable restrictions on the right of free speech are very crucial concepts but both the legislature and judiciary have failed to properly define them. This brings a lot of ambiguity and vagueness to their interpretation; and consequently reduced to being subjective in nature rather than being concepts having any certain objectivecriteria.
To analyse if the monologue was defamatory, we have to look at the definition of “defamation” as provided under section 499 of the Indian Penal Code 1860 along with its 2nd explanation.
Sec 499. Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter excepted, to defame that person.
Explanation 2. It may amount to defamation to make an imputation concerning a company or an association or collection of persons as such.
The basic principle of Criminal Law states that for any activity to be a crime there has to be a wrongful act (actus reus) and wrongful intention (mens rea). To come to a conclusion, it is important to ascertain whether the comedian INTENDED to defame his own country?
It is important to note that there does not exist any legislation in India that penalizes an individual for defaming a country or holding its servants accountable concerning their official duties. Author Robert Castle in his article titled ‘Can you defame a country?’, states that, “If a country could sue for defamation of character, Bulgaria would have a strong case against many media outlets [New York Times or Wall Street Journal] for seriously, and maliciously, misrepresenting the country’s political, economic, and social situation.”
Keeping in mind that a country cannot be defamed, Explanation 2 of section 499 specifically mentions an imputation concerning an association or collection of persons. If we are to interpret it literally, we can say that such an association or collection of persons who feel that their reputation was harmed because of the monologue can legally prosecute the comedian. But was the comedian representing India in any official capacity that he was shunned the right of placing his personal opinions?
CONCLUSION
In the 2019 case of Indibility Creative Pvt. Ltd. V Government of West Bengal, Justice D. Y. Chandrachud observed that underlying the vision of the artist is a desire to find a new meaning for existence. The artist, in an effort to do so, is entitled to the fullest liberty and freedom to critique and criticise. Satire and irony are willing allies of the quest to entertain while at the same time to lead to self-reflection.
To conclude it is important to know; whether any word, written or oral, is a symbol of freedom of speech and expression or falls under the realm of reasonable restrictions? Whether leaders should be held accountable on domestic forums or country’s dignity be kept for scrutiny at an international level? Whether the personal liberty of an individual is valuable or the social liberty of the citizens at large? Whether we have the right to place our personal opinions or only crude facts on behalf of the whole nation? Whether some groups of individuals are intolerant or tired of rampant generalizations? Whether as citizens we are always supposed to sing praises of our nation or can we also demand change?
Morals and ethics are naturally wider concepts in comparison with criminal law. The former are the ideals of a greater good while the latter only deal with harmful social interactions. Criminal law comes into existence where morals and ethics fail. If we were to learn from our ancestors, the ancient Indian temples have carved and depicted the earth in various shapes, there existed a ‘Flat Earth Model’, ‘Concave Earth Model’, ‘Round/ Spherical Earth Model’, ‘Oval/ Oblate Spheroid Earth Model’, etc. This signifies that the country and its civilization as a whole have always allowed all the diverse opinions to exist. The truth or falsity is a later stage of evaluation but free speech has always prevailed. Given an opportunity to represent my country, its culture, and heritage I may personally choose to bring the positive generalizations to the limelight but does that mean I can forcefully withhold the other individual from exercising his right of personal liberty?
No country in the world has attained supremacy over the political, economic and social crisis in its entirety. It is indeed important to acknowledge the problems to be able to reach a solution. But to what an extent, calling ALL Indian men(worshipers of the Devine Feminine in particular) as ‘rapists’, is justifiable? Ours is a 75 years young country competing with the world, relearning its history and identity, though it is a mammoth task but sky is the limit for us in all the facets of development. So can’t we do our bit to come together with pride and represent India’s true spirit?!
Jai Hind!