Back in 1762, the English radical, John Wilkes, wrote a satirical introduction to the play, The Fall of Mortimer. In it, he called the monarch, King George III, an imbecile and slyly suggested an illicit relationship between the king’s mother and the prime minister. When asked how far he thought his freedom of speech went, he remarked: “I do not know. I am trying to find out.”
Last week, the online content creators, Ranveer Allahbadia and Samay Raina, found out. Given the public backlash over a lewd question put by Allahbadia to a contestant on Raina’s show, India’s Got Latent, the ministry of information and broadcasting blocked the video. The Maharashtra, Assam and Jaipur police have filed first information reports for the publication of obscene material. The Supreme Court has called his statements “disgusting”, “filthy” and “insulting”. It has stayed his arrest for the time being, but not before imposing a slew of questionable conditions, including not being able to air any programme without another order from the court.
Despite Allahbadia’s public apology, many, including the Supreme Court itself, have called for stricter content controls. This is a familiar story: hurt sentiments, public outcry, a threat of legal action and censorship. All this after the cat is already out of the bag — the ban has catapulted the video to national news and anyone who is even remotely interested knows its content. This is the sad and ironic state of content production and controls in India. The ministry has shut down 18 OTT platforms for such supposedly obscene content in 2024 alone. How much longer do we go down this path of offensive content being met with a useless clampdown before the value of free speech is respected both by content creators and trigger-happy governments?
First things first. Allahbadia’s comments were distasteful. Yet, Article 19(1)(a) of the Constitution, which guarantees the freedom of speech and expression, permits the expression of opinion that we find in bad taste. Reasonable restrictions are permitted on a few grounds, including in the interests of “decency or morality”. The Supreme Court has considered the meaning of these notoriously vague terms and, over time, whittled down their meaning. In essence, speaking distastefully is not a ground for putting someone in jail.
In 1964, the court green-lighted criminal action against booksellers who sold the sexually explicit novel, Lady Chatterley’s Lover, on the basis of the Victorian-era Hicklin test. Even though the novel otherwise may have literary value, since a few extracted pages would be likely to “deprave or corrupt” readers, a ban on the whole book was justified. As a result, the State became the moral guardian of those with “lascivious, prurient or sexually precocious minds”, with wide powers to ban what it felt was indecent content.
In 2014, the Supreme Court in Aveek Sarkar’s case did away with this outdated test. Sportsworld magazine had published a cover photo in which a semi-naked Boris Becker was posing with his black fiancée, Barbara Feltus, covering her breasts with his hands. The judges refused to apply the standard of those who were prone to titillation at the slightest provocation. Instead, they deemed that the “average person” is more likely to consider this as a powerful message promoting racial equality.
But this begs the question — who is the ‘average person’? After all, many in the audience cheered Allahbadia on. The Supreme Court is yet to provide an answer but has somewhat shifted the goalposts. In a string of cases — Thackeray (1996), Kanniamal (2010), Johar (2018) and Shine (2019) — it has introduced the notion of ‘constitutional morality’ as opposed to ‘public morality’. The former concerns the enduring values of the Constitution; the latter the shifting sands of public opinion. Free speech does not depend on the collective preferences of a momentary majority even if we were somehow able to ascertain what the ‘community’ thinks, less still a vocal and ban-happy minority, but on the liberty value of expression itself.
There is inherent value in protecting our ability to think and express ourselves — artistically, politically or otherwise — as cognitively alive, social beings. The same freedom that Allahbadia made such poor use of is used by this newspaper to hold the powerful to account, was used by Shyam Benegal in his searing commentaries on India’s social milieu, and is used by each of us when we choose which song to listen to, which book to read, which video to watch. The FIR making out a ground to arrest Allahbadia does not merely restrict him and others of his ilk alone; it actually restricts all of us. After all, the biggest enemies of free speech are not idiotic statements or distasteful jokes — we can always choose to ignore these. It is forcing everyone to think twice before expressing themselves. Tolerating some nonsense is the price we pay for universal freedoms.
Beyond theory, there are three reasons supporting an approach that widens speech rather than restricts it. First, history cautions us from letting the State judge what is decent or moral. To permit content controls is to begin a war on words and invite government over-reach. Legal action against the cartoonists, G. Bala and Rachita Taneja, the Jadavpur University professor, Ambikesh Mahapatra, and the stand-up comic, Munawar Faruqui, are examples of how the moral scale can slide quickly.
Second, freedom of speech must include the freedom to experiment, err and make mistakes. That is how we grow. If Rabindranath’s elders had chided his early poetry for being childish, he may never have grown into the philosopher-poet we know him as today. Artists and writers should remain free to entertain the ludicrous, flirt with the gross, and engage the taboo not because the result is always valuable but because we never know where they may find a gem in the dirt. Allahbadia himself has gone from singing romantic duets to hosting softball podcasts with members of the Union cabinet and, now, he is mouthing inanities. Free speech is all about hits and misses, with misses predominating.
Third, a mature society need not let the wayward unduly ruffle its feathers. Legal action is a narrow sub-set of tools available to us, the people, to regulate standards. We can refuse to watch, like or subscribe and buy tickets, denying them the fuel of attention and the income that fan their clickbait-driven flames. We can speak our opposition to offensive content, or better still, raise the bar with material of our own. “My freedom of speech,” the satirist, P.J. O’Rourke, said, “stimulates your freedom to tell me I’m wrong”. Making Allahbadia a criminal is a cop-out.
The American route of free speech absolutism where everything goes, including pornography and no controls whatsoever on social media platforms, is not for us. Culture matters, and we need to reflect on the unhappy state of our entertainment industry. Satire or slapstick or dark humour is one thing; vulgar, unimaginative and aggressive speech is another. But censorship only cuts short that conversation on becoming responsible and chills future experiments.
Allahbadia’s unfortunate adventure will soon fade from our news cycles. But the battle for content controls is just beginning. Threats to freedom lurk everywhere, be they from religious groups, cultural traditionalists or the politically correct cancel culture. Real change will come only through our collective voice and choice in repelling these threats, not facing down the barrel of a chargesheet. We must fight to remain a country of creators, not censors.
Arghya Sengupta is Research Director, Vidhi Centre for Legal Policy. Raag Yadava is a lawyer and an academic. Views are personal