That Santa-Banta joke you just read on the Internet could be among the last as the Supreme Court is on its way to decide if such jokes offend the Sikh community or are just in good humour.
Community-based humour is not uncommon in a country where every state and community breeds a stereotype. By putting up such humour on the Internet, money is being made.
On 30 October last year, a lawyer identifying herself to be from the Sikh community, filed a public interest litigation before the apex court seeking a ban on websites carrying ‘sardar jokes’ as they make money by portraying the Sikh community as ‘persons of low intellect’.
A bench led by chief justice of India T.S. Thakur heard the lawyer who explained how derogatory the jokes are for her community. Her own kids did not want to be identified with traditional Sikh surnames, she said, as they feared they would be ridiculed.
The bench, however, was more interested to know, like everyone else in the courtroom, if the matter needed the attention of the court at all. After deliberating for half an hour, the judges decided to admit the plea and give it a fair hearing.
Meanwhile, the Delhi Gurudwara Prabandhak Committee (DGPC) also moved a petition seeking a ban on such jokes as they violate human rights of members of the Sikh community. To be fair, judges have said during the hearing that the friends they have from the Sikh community are quite jovial and tolerant and do not get offended by such jokes.
On 4 January, a three-judge bench asked if the petitioner would prefer the case being heard by a judge from the Sikh community. When the bench sought the personal views of additional solicitor general PS Patwalia, a Sikh himself, he answered that the community views the issue “seriously”.
Complex legal issues surrounding freedom of speech and expression and reasonable restrictions on the same have not yet cropped up in the court hearing. Banning websites without a second consideration is another story. The government in August last year banned 857 websites containing pornography only to do reverse the decision quickly.
As the law stands, the Supreme Court in 1989, giving a liberal interpretation of freedom of speech in the S. Rangarajan case had said, “It is the duty of the State to protect the freedom of expression since it is a liberty guaranteed against the State. The State cannot plead its inability to handle the hostile audience problem.”
Gautam Bhatia, a Delhi-based lawyer and author of Offend, Shock, and Disturb- Free speech under the Indian Constitution doubts if the plea is legally sustainable. “The only possible legal provision that could be applicable is section 153A of the Indian Penal code, which penalises stirring up enmity or hostility between groups or communities,” he said.
“However, the Supreme Court has made it abundantly clear that there need to be two communities between whom the hostility/enmity is being created. If I, as an individual, crack jokes about Sardars, it isn’t illegal.”