The Police vs. Comedy: Freedom of Speech in India Through the Lens of Stand-Up Comedy

By: Emily Bengel

Freedom of speech and religion are liberties that are highly regarded in the United States. But how well are they protected in other nations, like India for instance? India is a socialist democratic republic and passed its constitution in 1949.[1]  This constitution protects freedom of speech and freedom of religion, while attaching some caveats for the state to regulate speech for certain reasons.[2] Recently, the comedy scene in India has grown, and some comics have turned to dark humor for their routines.[3] As is common in comedy, religion can find itself to be the brunt of some comics’ jokes. The issue has arisen as to whether the regulation of a comic’s routine is permissible under the Constitution of India.

Article 19 of the Constitution of India regards the fundamental rights guaranteed to individuals in India.[4] The first of these rights is the right “to freedom of speech and expression.”[5] In the first part of this article, the freedom of speech and expression is broad and seems so general as to be unequivocal.[6] Then in part two of Article 19, passed as an amendment to the Constitution,[7] the government reserves a right to regulate speech for particular purposes relating to the security of the nation and public order.[8] The government of India created a Constitution and then was prompted less than two years later to amend it in order to restrict freedoms and give the government more power to restrict speech.[9]

A second provision of Article 19 of the Constitution of India is relevant to this discussion as well. The Constitution provides for the right “to practise any profession, or to carry on any occupation, trade or business.”[10] This right is also restricted later on in Article 19 allowing the state to reasonably restrict this fundamental right and to specify qualifications for particular professions.[11] Just as with the freedom of speech, the government granted the right in a rather general sense and then found reason to restrict it later on with new amendments to the Constitution.

Article 15 of the India Constitution is also of interest in that it prohibits discrimination based only on religion.[12] The state may not discriminate, nor may any citizen be subject to a restriction of access to any public services or public places due to his religious belief.[13] This Article of the Constitution includes some restrictions as well, though they have as their goal preferential treatment rather than an allowance of discrimination.[14] These exceptions include events such as granting preference to “women and children.”[15]

A moment in which various fundamental rights guaranteed in the Constitution of India collided in relevance was when comic Munuwar Faruqui was arrested on January first of this year. Faruqui, a Muslim, was about to start his show when he was confronted by a member of a Hindu religious organization who accused him of “insulting Hindu religious sentiments.”[16] The charge against Faruqui which is relevant to this discussion is that of “outraging religious beliefs.”[17] After making the arrest, the police admitted to having no evidence of Faruqui actually having made the jokes he was alleged to have made in poor taste.[18] Even the claimant only said that he overheard the preparations being made for the show and that is where he heard the joke.[19]

Now we come to the question of whether this arrest or this charge should be allowed under the Constitution of India. A charge of “outraging religious beliefs” seems out of place in a society which proclaims to practice freedom of religion. It additionally seems out of place in a society which proclaims freedom of expression and speech. Another potential constitutional violation arises in the idea that it is possible for an official in one religious group to cause the arrest on a simple accusation of a comedian who practices a different religion. There is also an argument that this arrest consists of the government hampering Faruqui’s right to practice his profession.

India’s Constitution and the way the government interprets it have always depended more on social conditions than on anything else.[20] In fact, a State of Emergency declared by the State gives the government broad authority to regulate expression.[21] Additionally, the Constitution of India’s broad allowances for the government to restrict the speech of its citizens has been specified with legislation throughout India’s history. Based on this, it is clear that the current administration is responsible for the ways in which speech can be restricted.

The legality of Faruqui’s arrest and detention are entirely dependent on the States definition of reasonable restrictions and of public order. Clearly, Faruqui upset a member of a Hindu organization before his show even began. The question is whether this is enough for the government to find that he endangered the public order or morality. This is likely what any case against Faruqui would turn on in court. The government’s powers through legislation will be the deciding factor in this case.

So it seems that the question for Faruqui will be how broad the current administrations power is to restrict his speech. If the nation declares a state of emergency, this power is already broad and far reaching. If legislation grants the government power to ensure peace between the Hindu and Muslim people, the power may be just as broad. India’s current president elected as the candidate from the Hindu party, indicating that Faruqui’s arrest and detention has a good chance of being held fully legal under the Indian Constitution.[22] The influence of religion on constitutional law in India has been clear since the passing of the Constitution and the influence of religion will likely remain clear in this case. Though the constitution of India grants broad freedom of speech as well as other broad freedoms, the Constitution ensures that the government has broad power to restrict speech in circumstances in which public morals and safety are at issue.

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[1] India Const. preamble, cl. 1 (available at https://www.constituteproject.org/constitution/India_2016?lang=en).

[2] See id. at art. 15, 19.

[3] Soutik Biswas, The Indian Comic in Jail for Jokes He Didn’t Crack, BBC (January 28, 2021), https://www.bbc.com/news/world-asia-india-55797053.

[4] India Const. art. 19.

[5] Id. at art. 19, § 1, cl. a.

[6] See id.

[7] Tim Bakken, India’s Constitutional Restraint: Less Expression in a Large Democracy, 5 Ala. Civ. Rts. & Civ. Liberties L. Rev. 155, 158 (2014).

[8] India Const. art. 19, § 2.

[9] Bakken, supra note 7 at 158.

[10] India Const. art. 19, § 1, cl. g.

[11] Id. at § 6.

[12] See id. at art. 15.

[13] Id. at art. 15, §§ 1-2.

[14] See id. at §§ 3-5.

[15] See, e.g., Id. at § 3.

[16] Biswas, supra note 3.

[17] Id.

[18] Id.

[19] Id.

[20] Bakken, supra note 7 at 170.

[21] Id. at 155-56

[22] India’s President says Religious Diversity Should be ‘Cherished’, WorldWatch Monitor (December 5, 2017), https://www.worldwatchmonitor.org/coe/indias-president-says-religious-diversity-cherished/.