SC orders 'unconditional public apology' from comedians for mocking disabled persons

New Delhi: Commercial and prohibited speeches are not covered under the fundamental right, the Supreme Court on Monday said as it asked five social media influencers, including "India's Got Latent" host Samay Raina, to display their unconditional apology in their podcasts or shows for ridiculing persons with disabilities and rare genetic disorders.

A bench of Justices Surya Kant and Joymalya Bagchi said the degree of repentance should be higher than the degree of offending and made it clear that the court would consider imposing a penalty on the influencers for offending disabled persons by social media influencers, at a later stage.

"It is like purging contempt," Justice Kant said while asking the influencers to apprise the court on how much penalty they were willing to pay, which in turn can be utilised in the treatment of people suffering from rare genetic disorders like spinal muscular atrophy (SMA).

The five influencers are accused of making fun of the disabled and those suffering from SMA and visual impairment.

Except Sonali Thakkar alias Sonali Aditya Desai, four influencers including Raina were present in the courtroom.

Justice Bagchi said the influencers should be more cautious while creating humour related to different communities especially when it pertains to "apartheid in the society".

"Much of this media block is used like feeding your own ego. It feeds on yourself and when you become too big and have so many followers… It's not only freedom of speech here. It is purely commerce….infact, there are various kinds of speeches and in the Amish Devgan case this court has classified various kinds of speeches like commercial speech and prohibited speech. This overlap of commercial and prohibited speeches is where you have no fundamental rights (sic)," Justice Bagchi said.

The bench allowed the intervention of the Ministry of Information and Broadcasting and asked Attorney General R Venkataramani to come up with guidelines to regulate the contents on social media while taking into account the views of all stakeholders.

Venkataramani said the government was in process of formulating the guidelines but ruled out any "gag order".

Justice Kant agreed and said that was the reason behind the suggesting in the last hearing that draft guidelines will be shared in public domain for the views of all stakeholders.

"There should be some accountability. Today it is disabled people but tomorrow it can be women, children and senior citizens," Justice Kant added.

Justice Bagchi weighed in, "Humour is definitely well taken as humour is a part of life. We laugh at ourselves but when you start laughing at others then we should have a sense of sensibility. It's not only disability but we are a country of varied communities…" He further told Venkataramani that the proposed guidelines should sensitise the people and fix responsibility for their faults.

Senior advocate Aprajita Singh, appearing for NGO Cure SMA Foundation of India, which has sought action against the influencers for their utterances against the disabled, said a better sense prevailed among the influencers, who tendered an unconditional apology.

She said the issue was not of the influencers alone and the Information Technology Rules and the Cinematograph Act mandate that persons with disabilities cannot be targeted.

While Justice Kant said there should be penal action under the rules which should be proportionate to the harm caused to the dignity of people, Singh suggested influencers to spread awareness on the rare genetic disorder and disabilities through their shows.

The bench told the attorney general that the proposed guidelines for social media regulations should not be a knee-jerk reaction to one incident but based on broad based parameters incorporating views of all stakeholders.

The top court also pulled up Raina for the affidavit enclosing his apology and said he initially tried to defend himself and tried to look innocent.

The bench, however, exempted the influencers from making personal appearances in court subject to the undertaking of displaying their apologies for ridiculing the disabled and persons with genetic disorders.

Besides Raina, the apex court previously issued notices to four other influencers Vipul Goyal, Balraj Paramjeet Singh Ghai, Sonali Thakkar alias Sonali Aditya Desai and Nishant Jagdish Tanwar.

The court called the influencers' conduct "damaging and demoralising" and called for "serious remedial and punitive action" to stop any recurrence of such incidents.

On July 15, the top court asked the five social media influencers, including Raina, to appear before the court in a case seeking action against them for ridiculing persons suffering from disabilities.

Earlier, Raina was booked by Maharashtra and Assam police over derogatory comments on his YouTube show "India's Got Latent" along with podcaster Ranveer Allahbadia.

On February 18, the top court granted interim protection from arrest to Allahbadia while calling his comments "vulgar" and saying he had "dirty mind" which put society to shame. Aside from Allahbadia and Raina, others named in the case in Assam are comics Ashish Chanchlani, Jaspreet Singh and Apoorva Makhija.