Democracy: Do you have a funny bone?

The People: Not really, we are a serious people!

Democracy: Well, then I am not your cup of tea. Please look for Autocracy. I prefer a sense of humour in my long-term partners.

The life of a nation depends on how well the creative and comedic juices of its people are flowing. Even if what is seen as humour by some is seen as deliberate vilification by others.

Dr BR Ambedkar, the principal architect of the Indian Constitution, knew this well through his own life experiences. Cartoonist Unnamati Syama Sundar (who signs off as Syam) put together a book on the various cartoons (about 122) on Dr Ambedkar, titled ‘No Laughing Matter: The Ambedkar Cartoons 1932-1956’. One can see the biases inherent in these cartoons, their casteist and sexist nature, and one can imagine how deeply they would have impacted Dr Ambedkar during his own lifetime.

No wonder Dr Ambedkar understood the power of the press and how the cartoons of the day employed humour to support the dominant narrative of the day. He knew the role of the press and the cartoons in making some heroes and reducing others to villains. Perhaps that’s why he started four newspapers in his lifetime inspite of being poorly funded. He knew that most of these cartoons were due to the prevalent bias against him. These biases came from all sorts of press, those seen as favouring the Congress and also RSS mouthpieces, but he took them in good stride.

Dr. Ambedkar was not alone in being subjected to what the cartoonists’ saw as humour; scores of politicians in India have been subjected to the same, especially when they made unpopular or controversial choices. Think of the cartoons on VP Singh during the Mandal Commission, or Arjun Singh during the introduction of the Other Backward Classes (OBC) quota.

The cartoons have not been limited to politicians. Every time the Indian judiciary took what some may describe to be a ‘funny’ stand, the cartoonists didn’t mince their ‘art’ – be it when the Supreme Court refused to hear the batch of petitions in Judge Loya’s death, or the U-turn of the Gujarat High Court in the riots case, or the proposed impeachment of Justice Dipak Misra.

But why bother giving comedy so much space in our constitutional framework and freedom of expression? What is so charming about comedy after all, one may enquire, that even when it is hurtful (to some), mean, or beyond our tolerance level, we may continue to live with it?

Prof Jack L Sammons explains:

“The gist of it is that comedy, most of it, enacts a sudden alternative community among listeners, an alterity in academic parlance, and is—very oddly—like religion in this [in evoking shared belief]...Next time you listen to a comedian, try noticing the community he or she calls into existence by the comedy. It is always—at least among standups—a claim that ‘we’ see this differently and, of course, ‘we are correct'.”

This explains why comedy that is employed for the limited purpose of humour is always looked favourably upon, but comedy that strikes deeper, or presents an alternative version of reality, or one that seems revolutionary by daring to re-divide the lines between ‘us’ and ‘them’ is seen as dangerous – not to the nation, but those who have come to wield power as their exclusive bastion. It is therefore imperative on us, the people, that we take the task of saving comedy a tad bit more seriously. For it is no laughing matter.

Comedy - either through humour employed in a stand-up comedy act, or as an art form by a cartoonist - exposes our frailty, our vulnerability, and breaks our 'oh so serious' attitude by showing to us with nimble feet a unique viewpoint on our everyday world-view. It opens up a window in our heads, and in the process, either reaffirms or challenges our own deeply held notions – sometimes even sub-conscious ones. This is why comedy, humour, and the art of the comedians and cartoonists remain quintessential tools in the repertoire of democracy.

But that does not mean that comedy or indulgence in it can ever exist without a fair share of trial and controversy. For example, in 2012, Prof Ambikesh Mahapatra of Jadavpur University was arrested and jailed for forwarding a cartoon lampooning West Bengal Chief Minister Mamata Banerjee to about 65 people via email. The State Human Rights Commission led by Justice Ashok Ganguly ordered that Prof Mahapatra and his friend be paid a compensation of Rs. 50,000 each, which was ignored by the state government. Later on, the Calcutta High Court in 2015 ordered that the compensation amount be increased to the tune of Rs. 75,000 each.

In May 2018, the Madras High Court, while ruling in favour of Tamil cartoonist Karna in a criminal defamation case filed by three DMK legislators, held:

“No doubt, law has to come to the rescue of a person who feels defamed. But then, law envisages a reasonable person and not a touchy and hyper-sensitive individual like the respondent.”

The cartoon published in Tamil newspaper Dinamalar had depicted then DMK Chief M Karunanidhi as a cap seller, and fellow DMK MLAs as monkeys, taken from the children’s story ‘The Cap-Seller and The Monkeys’.

Upholding the right to laugh, Justice GR Swaminathan said,

“The present cartoon if seen by a normal newspaper reader - s/he would just laugh. In fact, the very object of cartooning is to produce such an effect in the reader.”

We were taught as children not to laugh at others but always to laugh with them, as in every society, comedy at other people’s expense is bad humour. But there is a thin line between being offended and seeing an alternative version about us, from other people’s perspective, however mean it may be. When the joke is on those whose constitutional duty it is to take into account various alternatives and perspectives, we need a more magnanimous approach.

The famous US Supreme Court Justice William Rhenquist’s celebrated judgment in Hustler Magazine Inc v Falwell reads,

“The political cartoon is a weapon of attack, of scorn, ridicule and satire; it is least effective when it tries to pat some politician on the back. It is usually welcome as a bee sting, and it is always controversial in some quarters.”

The series of tweets by Kunal Kamra has evoked a series of emotions, thoughts and discussions. He made remarks against the Supreme Court judges and lawyers, when the bail petition filed by Arnab Goswami in the case of alleged abetment to suicide was being heard. Attorney General KK Venugopal subsequently gave his consent for contempt proceedings to be initiated against Kamra, who does not seem to stop. His recent tweet read:

“One of these 2 fingers is for CJI Arvind Bobde... ok let me not confuse you it’s the middle one.”

Now, this is clearly distasteful, and some may say, scandalous. The Attorney General, while giving fresh consent for contempt proceedings based on this tweet, said –

“The said tweet is grossly vulgar and obnoxious, and I have no doubt that it would tend to lower the authority of the Supreme Court of India as well as undermine the confidence that the litigant public have in the institution of the Supreme Court of India itself.”

But here is a question – why shouldn’t the words of Kunal Kamra be seen as a reflection of the repressed anger, frustration and complete dejection at the overall conduct of some Supreme Court judges and top lawyers? A sentiment that may have been expressed, arguably distastefully by Kamra, but one shared by a large section of the country.

If showing two fingers to the Chief Justice of India is so worrisome for us as a nation, why isn’t the strategic silence and selective dispensation of justice not equally blood boiling? When the dead body of a 19-year-old Dalit girl in Hathras is burnt by the cops in the middle of the night and the Supreme Court does not intervene, is that not 'shockingly scandalous’? If the dignity of the Supreme Court judges may be lowered because a comedian has shown ‘two fingers’, what about the dignity of Sudha Bhardwaj, Varavara Rao, and Stan Swamy who continue to undergo such deprivation of their fundamental rights – and for what?

If a comedian through his words or a cartoonist through this art, can bring down the respect of the highest Court, what about the ‘conduct’ of the people who have taken the constitutional oath to protect our liberties? Shouldn’t that also be taken into account for what it does to our judiciary, legal system and belief in rule of law?

If the Constitution’s spirit came alive as a person and was to be the judge, what would it take as being more offensive?

A. Middle finger shown by a comedian; or

B. Conduct on the part of some judges who: refused to see the plight of thousands of migrants until it was too late; gave exceptional treatment for a known mouthpiece of the ruling dispensation; said nothing when honest officers like Sanjiv Bhatt stand up as whistleblowers; looked the other way when a fellow judge has to give up his life for taking the right stand.

Our democracy survives on the promise of our judiciary taking the mantle to hold the fort of justice. An institution is only as good as the people who govern it. If it takes a comedian to make us think seriously about these issues, then so be it. Another one of the cruel jokes of the world’s largest democracy perhaps!

People are watching; if they are silent, it does not mean that they do not see. Democracy as an idea has survived when all else has failed, because truth has its own scent and irrespective of what propaganda is played out, the people can see and feel the truth. They may be fooled for sometime, but as they say, you cannot fool everyone, all the time.

One may ask: Why does Kunal Kamra get bolder by the day? Perhaps because he knows that given his following and celebrity status, he is well positioned to spark this debate, while thousands of students, journalists, activists, continue to languish in jail, while no media will cover them.

One must also ask: What will it take for us as a nation and a legal community to usher in serious reforms in the Indian legal system and discuss issues that matter? What will it take to get the attention of our highest Court and its judges to issues that affect the lives of millions of people – like the constitutional status of Jammu & Kashmir.

Not as a lawyer, but as a common citizen of this person, I cannot stand two fingers being shown to the Constitution of my country.

Now will the Supreme Court excuse Kunal Kamra please, and tell us when we will see the hearing and judgments on the EVM fraud case; the Sabarimala review petition; the challenge to the abrogation of Article 370; the creamy layer case; and of course, the challenge to the Citizenship Amendment Act?

If a few jokes, comments, and tweets can shake our Constitutional foundation and Democracy, we better evaluate the career options of our next generation and place stand-up comedy right at the top. In the meantime, Kamra should consider contesting the next Parliamentary elections. Who knows when India may go the Ukrainian way and choose a comedian for the top job?

We, everyone who is part of the legal community, need to ask and engage in a discussion of what we need to do to ensure that the common person’s faith in the legal system and judiciary is reinforced and restored. What systemic and structural reforms are needed for people to feel respect for the Supreme Court judges and the institution from within?

Judges in India - those who have dedicated their lives to championing the cause of the Constitution - are seeing a difficult time, not just for the nation, but for the future of the Supreme Court itself. How they rise to the occasion, individually and collectively, will help write the next chapter in India’s democratic evolution.

Our constitutional scheme provides that judges always maintain a safe distance from the Executive, and display the sobriety, integrity and truthfulness that their constitutional oath demands. This is serious business - one in which lawyers, not comedians are trained for. But it is pertinent that this path is charted out while giving comedy the room it deserves in our constitutional scheme.

Avani Bansal is a Lawyer practicing in Delhi. You can follow her here.

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the views of Bar & Bench.