A Missed Opportunity: Indian Supreme Court’s Limited Innovation in Balancing Free Speech and Disability Rights

by | Aug 6, 2024

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About Sarthak Gupta

Sarthak Gupta graduated with a B.A.L.L.B (Hons.) from the Institute of Law at Nirma University (India) and is a Judicial Law Clerk-cum-Research Associate at the Supreme Court of India. He is also a Helton Fellow at the American Society of International Law.

On 8 July 2024, the Supreme Court of India in Nipun Malhotra v Sony Pictures Films India addressed the issue of representation and portrayal of persons with disabilities in media and society, particularly in the context of humour and free speech.

The Court held that while free speech is crucial, it must be balanced against the need to protect marginalised groups from further prejudice and disenfranchisement. The Court emphasised the importance of context and intention in determining whether humour or speech related to disability is acceptable or prejudicial, recognising the potential of humour as a tool for empowerment when used by persons with disabilities themselves. While the Court attempted to address an important issue, it ultimately fell short of introducing truly novel or transformative jurisprudence in balancing free speech protections with the rights of persons with disabilities.

The Case and the Court’s Analysis of Free Speech and Disability Rights

The Petitioner, a disability rights activist, filed a petition against the screening of the movie Aankh Micholi, contending that the movie misrepresented the medical conditions of disability, used derogatory terms for characters with disabilities, and promoted the idea that disabilities should be hidden to achieve societal acceptance, particularly in the context of marriage.

The Court adjudicated upon the delicate balance between creative freedom, protected as part of freedom of speech and expression under Article 19(1)(a) of the Constitution, and the rights and dignity of persons with disability in visual media portrayals. The Court ruled that while free speech, including humour, is fundamental, it may face restrictions under Article 19(2) if it reinforces prejudices against marginalised groups, including persons with disabilities. The Court distinguished between ‘disabling humour‘ that demeans and ‘disability humour‘ that challenges stereotypes, with the latter more likely to receive constitutional protection [66].

The distinction Between ‘Disabling Humour’ and ‘Disability Humour’

While the Supreme Court recognised the fundamental importance of free speech and expression, including satirical and humorous speech, it acknowledged that such expression is not immune from the restrictions outlined in Article 19(2) of the Constitution, particularly when it impacts marginalised groups like persons with disabilities [62, 70]. The Court noted that the level of protection to artistic freedom may vary based on the content and impact of the expression [63]. The Court held ‘disability humour’ as a legitimate and valuable form of expression, as it is often used by persons with disabilities themselves, as a sophisticated literary medium for societal engagement, dispelling prejudicial myths, and challenging notions of ‘otherness’ or ‘inferiority’ [65].

On the other hand, the Court held that ‘disabling humour’, which demeans and disparages persons with disabilities, may not enjoy full protection under Article 19(1)(a). The Court held that expressions of ‘disabling humour’ may ‘confirm and strengthen people’s prejudices against the group in question, which only marginalises and disenfranchises them more’ [62]. Such humour may be more likely to face more intense scrutiny under Article 19(2), but this doesn’t mean it’s automatically restricted. Importantly, the Court emphasises that the context, the intention, and the overall message must be considered when determining whether humour related to disability crosses into territory that could be restricted under Article 19(2) [63].

Superficial Distinction without Legal Innovation

The Supreme Court’s decision, while attempting to address the complex interplay between free speech and the rights of persons with disabilities, falls short of establishing a truly groundbreaking precedent. The Court’s distinction between ‘disabling’ and ‘disability’ humour, though seemingly novel, merely repackages existing principles of contextual interpretation of speech under a new nomenclature. This bifurcation, while potentially useful as a heuristic device, does not substantially alter the fundamental approach to assessing speech under Article 19(2) of the Constitution. The Court’s approach stipulates a sliding scale of scrutiny rather than a clear-cut distinction between protected and restricted speech.

Humour that entrenches stereotypes and opposes the dignity of persons with disabilities may be subject to closer examination, but the Court stops short of declaring that ‘disabling humour’ is automatically restricted. The Court’s emphasis on context, intention, and overall message in determining whether humour related to disability warrants restriction is not a departure from established jurisprudence. Rather, it reaffirms the existing paradigm of contextual analysis applied to various forms of speech. Thus, the Court’s approach lacks clear implementation criteria, potentially leading to subjective application concerning the identification of the context and the evaluation of intent, failing to address the complex intersection between disability rights and free speech.

The Court could have taken a more decisive stance by explicitly recognising ‘disabling humour’ as a restricted form of speech under Article 19(2) of the Constitution. Such an approach would have provided a clearer legal basis for restricting speech that denigrates and marginalises persons with disabilities. By framing the issue in terms of morality and public interest – arguing that the perpetuation of harmful stereotypes and the further marginalisation of vulnerable groups is contrary to the social welfare state – the Court could have established a more robust legal framework for addressing discriminatory speech. However, the Court’s reluctance to expand the interpretation of Article 19(2) represents a missed opportunity to adopt constitutional principles in protecting marginalised communities.

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