Courting Controversy: Distasteful gets disregarded

Comedian Samay Raina found himself in the unfamiliar halls of the Supreme Court instead of a comedy club for making remarks, rather insensitive and witless to persons with Spinal Muscular Atrophy, that practically sprinted across everyone’s social-media feed. Made in jest during a stand-up comedy set, the remarks were seemingly aimed at accelerating traction and, in turn, commercial gains. In its order last week, the Supreme Court, while keeping with its role as a guardian of free speech, adopted a novel approach to the thorny medley of satire, sensitivity, and social responsibility that these remarks present.

Aiming to use the popularity of stand-up comedians constructively, the Court by its order dated 27 November 2025 directed that revenue generated from some of their events contribute to a corpus fund set up to provide aid and assistance to persons with Spinal Muscular Atrophy. The order also records that the court continues to await guidelines from the Ministry of Information and Broadcasting which will propose a mechanism for addressing such satirical comments.

Given that these guidelines may well chart the precise point at which a punchline oversteps the boundary, it is important that these be framed in a manner that stays true to the spirit of the Court’s recent order. In essence then, the guidelines should uphold pluralism and tolerance as the building blocks of a democratic society, rather than seeking to set out content-based restrictions. That suggestion will surely raise the question of how society ought to treat insensitive speech that erodes the societal moral fabric, particularly for commercial gains.

History shows that society has resolved this dilemma in its own quiet way by consistently discarding that which it finds distasteful. Consider three examples which were either part of the lingo or reflected acceptable characteristics in blockbuster movies. First, the word ‘negro’. For much of the twentieth century, it was commonly used, but over time, social sanction rendered it radioactive. Second, the term ‘retard’, once employed both as a medical label and casual insult for persons with intellectual disabilities, has similarly been largely banished by social norms. Third, one can look to the prevalence of bodily discrimination, which once a staple of cinema and schoolyard banter, now risks social ostracization in both parody and commerce. A telling instance is Mattel’s Barbie, which eventually introduced three new body types (petite, tall, and curvy) alongside its original thin-waisted bestseller, long criticized for promoting unrealistic body standards for children.

The banishment of these two terms or admonishment of stereotyping bodily standards by society has been organic, enduring and significantly effective. Though this change has not been caused by judicial intervention, courts across the world have always shone a guiding light while staying away from over interference. In Ward v. Quebec, the Canadian Supreme Court was confronted with a similar dilemma as the Indian Supreme Court, where it had to consider a comedian’s jokes targeting a man with Treacher Collins Syndrome. Viewing it as a case of competing dignity claims – the man’s right to protection from humiliation versus the comedian’s right to free expression – the Court concluded that the offensive comedy was not discriminatory speech. Essentially, the Court stressed that audiences are discerning enough to tell a bad joke from a dangerous one, and courts need not interfere.

Then, what kind of guidelines can reasonably govern expression in social media, particularly when the dissemination is being undertaken for commercial gains?

Practical guidance may come from platforms themselves. In Moody v. Netchoice, the US Supreme Court, a bastion of free speech, observed that Facebook and YouTube had “[c]ommunity standards and community guidelines” which set out “the varied kinds of speech the platforms want no truck with”, and “both platforms appear to put those manuals to work.” The Court further noted that in a single quarter of 2021, Facebook took down over 25 million “hate speech” posts, almost 9 million pieces of “bullying and harassment content”, and YouTube deleted around 6 million videos violating its Guidelines. Those are sizeable numbers, in any large democratic society. However, the Court declined governmental control over enforcing broader regulation over speech, observing that “…in most of those cases, the government defended its regulation as yielding greater balance in the marketplace of ideas”, but “such an interest could not support the government’s effort to alter the speaker’s own expression” as “the State cannot advance some points of view by burdening the expression of others.”

This is wise counsel. So, what should the guidelines look like? For starters, industry players should have in place appropriate safeguards to prevent a breach of the editorial standards of the platform used for dissemination. Their enforcement should be stringent. All platforms should also ensure transparency in the manner in which they plan to enforce such safeguards. Further, any sensitive speech can be prefaced with both an introductory and continuing disclaimer that it is not intended to cause any hurt. More guidelines may be framed, but none should, in the guise of regulation, curb creativity or development of thought. They should only step in when commercial players permit dissemination that crosses thresholds comparable to hate speech or imminent harm, standards that have long been used to delineate the limits of free expression.

The fact remains that society knows how to laugh, boo, and most importantly, move on. Or, as Oscar Wilde put it with his usual sting, “[t]he only thing worse than being talked about is not being talked about.” Speech that does not meet the threshold accepted by society will just fitter away. In the meantime, as the Supreme Court’s recent directions confirm, the show must go on.

Nakul Dewan is a Senior Advocate and King’s Counsel.