Humor or Harm? Legal perspective of Stand-Up Comedy

Saad Misbah,

Jamia Millia Islamia University

I.INTRODUCTION

Stand-up comedy has grown to become major social phenomenon where entertainment is made alongside giving expression to different social and political issues. Thus, stand-up comedians in societies, including India, as influencers and artists engage in the practice of making people laugh but also provide critical perspectives on social issues, question the status quo, and discuss paradoxes. This makes comedy as a form of resistance subversive in nature and most of the time used in a disguised way so that it is not easily banned or penalized. But with the growth of political and satirical form, there came legal issues as well concerning defamation, hate speech and censorship[i]. Whereas before stand-up comedy was just seen as entertainment, its legal ramifications are becoming clearer in India where the political environment is getting more and more charged, making the tension between the freedom of speech and the state’s attempt to reign in the culture, clearer[ii]. This implies that knowledge on these legal views is critical whether for comedians or for the broader society in the quest for understanding humour while avoiding causing harm.

II.HISTORICAL CONTEXT

In many parts of the world and especially in India, stand-up comedy as an art form has a rather short history. Earlier on, humour was somewhat included in other domains of entertainment such as theatre, poetry and movies. Humour in the form of satire was initially established during the Mughal Empire where Raja Birbal is said to have used his wit to entertain[iii] and the British period where satire was prominently featured in magazines and newspapers. In the colonial period, satire became one of the most important tools of the anti-British movement and newspaper and theatre had a very important role in this process[iv].

Modern Indian stand-up comedy was born at the start of the twenty first century as the global trend for this format developed[v]. Some of the earliest players like Vir Das helped bring Western style of stand-up and integrate local flavour[vi]. This paved way to a new generation of stand – up comedy where the comedian not only entertained the audience but also explore social, political and even cultural themes.

III. LEGAL FRAMEWORK

The legal regulation of stand-up comedy is rather ambiguous, especially in countries where freedom of speech is formally guaranteed but limited in practice. In Indian Constitution, freedom of speech and expression is provided under Article 19(1)(a). But this right is not unrestricted and can be restricted under Article 19(2), whereby the state can place restrictions on speech in the interest of the sovereignty and integrity of India, maintenance of public order, decency, morality, and other like considerations[vii].

Stand-up comedians must operate within these legalities particularly where their performances involve topics of controversy such as politics and religion as well as social issues. Legal threats that come with comedian performance include defamation, hate speech, and obscenity, and charges on the same bring up criminal justice or civil cases. Defamation laws in India which are enacted under sections 356 of the Bharatiya Nyaya Sanhita (BNS) makes it illegal to publish anything that has the effect of harming the reputation of a person or an organization. In the light of stand-up comedy, it implies that actions performed on stage or words that can be considered as satire can bring the comedian to Court since defamation is a punishable crime.

The last but not the least significant legal issue that could arise is the ability of the content to be defined as a hate speech. Bharatiya Nyaya Sanhita (BNS), specifically section 299 can be used to prosecute someone for speech which is ‘calculated to hurt the religious feelings, sentiments or beliefs of persons belonging to any class, and having regard to the purpose of using such speech or words. Hence while doing the show, they need to be cautious with religion or ethnic issues because these are sensitive topics and may lead to violation of these laws. Moreover, Section 196 of BNS renders speech only to those who promote enmity between different groups on grounds of religion race, place of birth, residence, language, etc Further, the comedian is leaves unprotected when it comes to exposing social Taboos and vices in the society[viii].

Censorship is equally as significant in regulating the legal framework surrounding stand-up comedy. The Information Technology (IT) Act, especially Section 66A (subsequently deleted by the Supreme Court in 2015), demonstrated the conflict between freedom of speech and censorship by the government. Even to this date, the act’s ramifications persist on how content is supervised and controlled especially on virtual media – which is central to distributing a lot of the modern stand-up comedy[ix].

As the comedy continues to become more liberal in satirical statements in society, the comedians must be aware of the laws that handle them. The tension between entertaining and enunciating freedom of speech and at the same time observing the legal boundaries greatly defines the key aspects of stand-up comedy[x].

IV.BALANCING FREE SPEECH AND HARM

The delicate balance between free speech and the potential harm it can cause is a central issue in the world of stand-up comedy. Comedians rely on free speech to address controversial topics and challenge societal norms[xi]; however, the words of comedians can have actual repercussions, ranging from lawsuits to threats and actual physical violence.

In India this balance is particularly fragile because the country is quite heterogeneous and often divided along religious and caste lines. Comedians have to perform in an environment in which the jokes they tell may upset one group or cause another group suffering. This is especially the case whenever comedy concerns matter of religion, caste, or politics, which all too easily can shift into areas of hate speech or defamation[xii].

To avert the legal calamity, most of the comedians practice self-censorship by formatting their jokes well to fit the acceptable legal parameters. Others take a more daring approach, pushing boundaries and accepting the risks that come with it. Self-regulation is therefore important when practicing comedy because artists need to consider the consequences of their work to the society and the public on a daily basis[xiii].

Ethical considerations also play a significant role in balancing free speech and harm. Jokes? Some of the best jokes that help to induce laughter contain concepts that may lead to potential harm if the joke is not successful in triggering laughter. This ethical issue becomes contentious when the joke is directed to a specific group in the society often belonging to the minority[xiv].

Thus, the difficulty for comedians lies in how to offer their messages to the public as freely as possible and at the same time with least damaging effects. This is not simply about having knowledge of legal norms and rules but it also concerns oneself with cultural and social realities of these norms and rules. This way comedians can still perform their roles of making people think while pushing agenda without going over to the dangerous side.

V.VULGARITY IN STAND-UP COMEDY

Vulgarity in stand-up comedy is always debatable while some comedians use it to address predetermined social issues, others use it just to elicit laughter or humour, with no deeper purpose. This may appeal to some viewers as they feel that it is very realistic, rude and crude most of the times and breaks the mould of most current societal norms[xv]. However, when vulgarity is used just for comedy without much thought it then affects the viewers in a poor way especially the young ones.

Since most stand-up comedy videos are available freely on the web, children and adolescents are likely to watch content that is not appropriate for them. The normalization of vulgarity could potentially lead to even further tolerance, potentially shaping the attitudes and behaviour of future generations. The questions arise with regard to the consequences of such material, as such clips may reduce a sense of humour among children, and their ability to distinguish between jokes with a purpose and vulgar jokes[xvi]. In a diverse and culturally rich society like India, comedians bear a responsibility to consider the broader implications of their work, ensuring that their use of vulgarity enhances rather than undermines the art of comedy​.

Thus, comedians in any multicultural and culturally saturated society such as India has particular responsibility that coincide with the goal and spirit of comedy to ensure that their use of vulgarity enhances rather than undermines the art of comedy.

VI.CONLUSION & SUGGESTIONS

Finally, it is important to note that the legal environment of stand-up comedy remains even today dynamic and multifaceted, which means that practitioners of this art need to be cautious when performing. In India where freedom speech and expression are guaranteed under the Constitution but is accompanied by several limitations comedians are within their rights to be as creative as they want to be but that creates legal and ethical consequences. The issues revolving around defamation, hate speech and censorship are not easy, especially because of the multicultural and religious nature of the society. Comedians should therefore take time and think about the consequences that come with what they post, it is not only about the law but also about the norms of the society.

While stand-up comedy is a tool of social critique that can generate positive social change, self-regulation and ethical consideration are necessary to prevent harm. Although it is important to explore the limits of satiric productions, one has to remember about possible outcomes of the provocative actions. The art of stand-up comedy is alive and more prominent now than it has been in the past; therefore, comedians and the law will need to adopt legal mechanisms of facilitating freedom of speech while preventing people from being offended in the process.

Finally, the comedians have the duty to look for the appropriate integration of humour and offense, for the purpose of changing the society and making people think, without violating the majority’s rights and sensibilities. In this way, they help create a society where laughter connects rather than divides and where people are less ignorant to the realities of others.

VII.REFERENCES

·David Calvey, A Sociological Case of Stand-Up Comedy: Censorship, Offensiveness and Opportunism, in The Lost Ethnographies: Methodological Insights from Projects that Never Were 65, 65-78 (R.J. Smith & S. Delamont eds., Studies in Qualitative Methodology, Vol. 17, Emerald Publishing Ltd. 2019), https://doi.org/10.1108/S1042-319220190000017003.

·Furqan Ahmad, Saima Alam & Amanpreet Kaur, Performative Retrieving of Humour for Socio-Political Subversion: Stand-Up Comedy as a Form of Creative Resilience, 9 Cogent Arts & Humanities, no. 1, 2022, https://doi.org/10.1080/23311983.2022.2131968.

·Naseem Ashiq V., Laughing Matters: An Essay on Kings, Clowns and Nobles, 37 Essays in Medieval Stud. 105 (2023).

·Xiao xia., Colonialism Culture-Context and the Rise of Indian English Fiction, J. Zhaotong Teachers Coll. (2006).

·Aditya Mani Jha, A Brief History of Indian Standup: The Early Years Supercut, Deadant, May 25, 2021, https://deadant.co/a-brief-history-of-indian-standup-theearly-years-supercut/ (accessed Sept. 04, 2024).

·Rajapriya Vishal & Priya Himangi, I am a Comedian, That’s My Job, Univ. of Bucharest Rev. Literary & Cultural Studies Series (2023).

·Douglas McDonald-Norman, Offend, Shock, or Disturb: Free Speech under the Indian Constitution by Gautam Bhatia, 22 Austl. J. Hum. Rts. 191 (2016).

·Iftikhar Alam, Roshan Lal Raina & Faizia Siddiqui, Free vs. Hate Speech on Social Media: The Indian Perspective, J. Info., Commun. & Ethics in Soc..

·Shishir Tiwari & Gitanjali Ghosh, Social Media and Freedom of Speech and Expression: Challenges Before the Indian Law (2014), available at SSRN: https://ssrn.com/abstract=2892537 or http://dx.doi.org/10.2139/ssrn.2892537.

·Sabin Paul, A New Public Sphere? English-Language Stand-Up Comedy in India, 25 Contemp. S. Asia 121 (2017), https://doi.org/10.1080/09584935.2017.1321618.

·Simeon Goldstraw, “It Was Just a Joke!” Comedy and Freedom of Speech, 0 Eur. J. Pol. Theory 1 (2023), https://doi.org/10.1177/14748851231205375.

·Madhavi Shivaprasad, Humour and the Margins: Stand-Up Comedy and Caste in India, IAFOR J. Media, Commc’n & Film, Vol. 7, Iss. 1, https://iafor.org/journal/iafor-journal-of-media-communication-and-film/volume-7-issue-1/article-2/.

·Paul Sturges, Comedy as Freedom of Expression, 66 J. Documentation 279, 279-93 (2010), https://doi.org/10.1108/00220411011023661.

·Inzamul Sarkar & Ayesha Siraj, Exploring Indian Stand-Up Comedy Through the Lens of Ideology, Identity and Gender: A Discourse Analysis, 13 Comedy Studies 41, 41-55 (2022), https://doi.org/10.1080/2040610X.2022.2040781.

·Alan McKee, Anthony Walsh & Anne-Frances Watson, Using Digitally Distributed Vulgar Comedy to Reach Young Men with Information about Healthy Sexual Development, 153 Media Int’l Austl. 128 (2014), https://doi.org/10.1177/1329878X1415300115.

·Amber van der Wal et al., Just a Joke? Adolescents’ Preferences for Humor in Media Entertainment and Real-Life Aggression, 25 Media Psychol. 797 (2022), https://doi.org/10.1080/15213269.2022.2080710

[i] David Calvey, A Sociological Case of Stand-Up Comedy: Censorship, Offensiveness and Opportunism, in The Lost Ethnographies: Methodological Insights from Projects that Never Were 65, 65-78 (R.J. Smith & S. Delamont eds., Studies in Qualitative Methodology, Vol. 17, Emerald Publishing Ltd. 2019), https://doi.org/10.1108/S1042-319220190000017003.

[ii] Furqan Ahmad, Saima Alam & Amanpreet Kaur, Performative Retrieving of Humour for Socio-Political Subversion: Stand-Up Comedy as a Form of Creative Resilience, 9 Cogent Arts & Humanities, no. 1, 2022, https://doi.org/10.1080/23311983.2022.2131968.

[iii] Naseem Ashiq V., Laughing Matters: An Essay on Kings, Clowns and Nobles, 37 Essays in Medieval Stud. 105 (2023).

[iv] Xiao xia., Colonialism Culture-Context and the Rise of Indian English Fiction, J. Zhaotong Teachers Coll. (2006).

[v] Aditya Mani Jha, A Brief History of Indian Standup: The Early Years Supercut, Deadant, May 25, 2021, https://deadant.co/a-brief-history-of-indian-standup-theearly-years-supercut/ (accessed Sept. 04, 2024).

[vi] Rajapriya Vishal & Priya Himangi, I am a Comedian, That’s My Job, Univ. of Bucharest Rev. Literary & Cultural Studies Series (2023).

[vii] Douglas McDonald-Norman, Offend, Shock, or Disturb: Free Speech under the Indian Constitution by Gautam Bhatia, 22 Austl. J. Hum. Rts. 191 (2016).

[viii] Iftikhar Alam, Roshan Lal Raina & Faizia Siddiqui, Free vs. Hate Speech on Social Media: The Indian Perspective, J. Info., Commun. & Ethics in Soc..

[ix] Shishir Tiwari & Gitanjali Ghosh, Social Media and Freedom of Speech and Expression: Challenges Before the Indian Law (2014), available at SSRN: https://ssrn.com/abstract=2892537 or http://dx.doi.org/10.2139/ssrn.2892537.

[x] Sabin Paul, A New Public Sphere? English-Language Stand-Up Comedy in India, 25 Contemp. S. Asia 121 (2017), https://doi.org/10.1080/09584935.2017.1321618.

[xi] Simeon Goldstraw, “It Was Just a Joke!” Comedy and Freedom of Speech, 0 Eur. J. Pol. Theory 1 (2023), https://doi.org/10.1177/14748851231205375.

[xii] Madhavi Shivaprasad, Humour and the Margins: Stand-Up Comedy and Caste in India, IAFOR J. Media, Commc’n & Film, Vol. 7, Iss. 1, https://iafor.org/journal/iafor-journal-of-media-communication-and-film/volume-7-issue-1/article-2/.

[xiii] Paul Sturges, Comedy as Freedom of Expression, 66 J. Documentation 279, 279-93 (2010), https://doi.org/10.1108/00220411011023661.

[xiv] Inzamul Sarkar & Ayesha Siraj, Exploring Indian Stand-Up Comedy Through the Lens of Ideology, Identity and Gender: A Discourse Analysis, 13 Comedy Studies 41, 41-55 (2022), https://doi.org/10.1080/2040610X.2022.2040781.

[xv] Alan McKee, Anthony Walsh & Anne-Frances Watson, Using Digitally Distributed Vulgar Comedy to Reach Young Men with Information about Healthy Sexual Development, 153 Media Int’l Austl. 128 (2014), https://doi.org/10.1177/1329878X1415300115.

[xvi] Amber van der Wal et al., Just a Joke? Adolescents’ Preferences for Humor in Media Entertainment and Real-Life Aggression, 25 Media Psychol. 797 (2022), https://doi.org/10.1080/15213269.2022.2080710.