Hasmukh Gets the Last Laugh as Delhi High Court Dismisses Injunction Plea while Distinguishing Satire from Defamation

As a general rule, it is frowned upon to bring disrepute to a person. That general principle is integral enough for the law to be concerned with it. The Indian Penal Code (“Code“) defines defamation as “making or publishing an imputation concerning any person, intending to harm, or knowing or having reason that such imputation will harm, the reputation of such person…”[i]. However, critique and the liberty to voice an opinion without consequence is an equally protected principle in democratic systems. Satire is a precocious form of art which is designed to evoke a strong response. Due to the same, it becomes important to note how the law differentiates between satire and defamation and when one may impinge on the other, regardless of the intent.

The Hon’ble Delhi High Court has distinguished between satire and defamation in the case of Ashutosh Dubey Vs. Netflix Inc and Others[ii]. The suit in question was filed by an advocate in his individual capacity, who sought a degree of permanent injunction against the web series, Hasmukh, currently streaming on Netflix. As per the advocate, the series, particularly Episode 4 of Season 1, contains derogatory remarks against the entire legal fraternity[iii]. The advocate contended that the remarks made in the show were neither humorous nor came across as a joke and were nowhere near satire or the boundaries of a critique. The dialogue which is the subject matter of the suit (“Impugned Dialogue“) goes as follows:

This is the first city I have seen where even the thieves are rich. But out here, they’re called lawyers. Your lawyers are the biggest scoundrels and thieves. These so-called upholders of law will never be brought to justice because they rape you with their pen. People say the law is blind. But I say the law is dirty because every lawyer carries a little stick in his hand.” [iv].

The Impugned Dialogue has been viewed by the advocate as being highly disparaging, defamatory and as bringing disrepute to the legal profession and lawyers in the eyes of the general public[v]. The defendants sought to contextualise the Impugned Dialogue by defining the contours of the series and highlighted the specific instance in which the reference to lawyers has been made, limiting it to a specific plot point of the series.

The Delhi High Court in its judgment, commenced by referencing several judgments in this regard. It relied on the Patna High Court’s decision in Asha Parekh and Ors. Vs. The State of Bihar[vi], wherein the Court observed that while the definition of ‘person’ as used in Section 499 of the Code was wide enough to include a company or association of persons in its ambit, such class of persons attributed to, must be a small determinate body. The Court elaborated on the essence of defamation, asserting that the offence of defamation was triggered by the “description of pain felt by a person who knows himself to be an object of unfavourable sentiments of his fellow creatures and those inconveniences to which a person which is the object of such unfavourable sentiments is exposed. The words or visible representations, therefore, complained of, must contain an imputation concerning some particular person or persons whose identity can be established.” The Patna High Court further cited the English Court’s ruling in Eastwood Vs. Holmes[vii] to support its proposition that lawyers as a class were not capable of being defamed. The Patna High Court opined that the class of advocates was a much more indeterminate and amorphous body[viii].

The Delhi High Court further relied on the judgment rendered by the High Court of Gujarat in Narottamdas L. Shah Vs. Patel Maganbhai Revabhai and Ors.[ix], which concerned defamation proceedings against the editors of a newspaper for publishing an editorial against a lawyers’ strike and referring to lawyers as “kajia dalals” i.e. dispute brokers. While quashing said proceedings, the Court stated that the “writing published is relatable to the entire class of lawyers” and does not pertain to any identifiable body of persons. This stance was reinforced by the judgment of the Rajasthan High Court in the case of Shah Rukh Khan Vs. The State of Rajasthan and Ors.[x]. In this case, it was also astutely pointed out that the class of lawyers was constantly in flux and so it made the entire class indeterminable and unidentifiable[xi].

The Hon’ble Delhi High Court also took into account the fact that the Impugned Dialogue was clearly spoken in a very specific context in the web-series, and moreover, the protagonist uttered the same as part of his stand-up routine[xii]. The protagonist faces adverse treatment from another character on the show, a lawyer, pursuant to which he delivers the Impugned Dialogue. While delineating the same, the Court has commented on the nature of satire as being a tool to criticise a particular subject or character to the point of ridicule. The Court has recognised satire as a literary work which uses wit and irony and indulges in an exaggerated portrayal of a subject[xiii]. Pertinently it was pointed out that when artists, including stand-up comedians, use satire as a means to highlight a particular point, the audience of such art do not view such comments or jokes made by stand-up comedians as statements of truth but understand that it is an exaggeration employed for exposing certain ills[xiv]. The High Court dwelled on the fact that satire was clearly distinguishable because it stretches the critique or portrayal of a subject/character to the extent of being ridiculous, which also enables the audience to recognise it as such and differentiate it from truth. Furthermore, the Delhi High Court upheld the constitutional right of freedom and expression which permits an artist to evoke his portrayal of a society in the manner he perceives it to be[xv].The Delhi High Court concluded that the advocate had been unable to show any personal injury sustained by him which could be attributed to the Impugned Dialogue and had therefore, been unable to prove that a prima facie case exists. While dismissing the application for interim injunction, the Court held that the advocate had not successfully demonstrated that in the absence of an ad interim injunction against the web-series, the advocate would be liable to suffer any irreparable loss or injury[xvi].

This judgment postulates and carves out a space for art such that every artistic interpretation does not find itself on the wrong side of the law. The judgment has clearly sought to achieve a certain balance between maintaining the dignity and reputation of a person while not eschewing the very essence of democracy. The above also echoes a very poignant quote by Justice Dr. D.Y. Chandrachud[xvii] wherein he holds forth on the nature and importance of satire in society:

Satire and irony are willing allies of the quest to entertain while at the same time lead to self-reflection. We find in the foibles of others an image of our own lives. Our experiences provide meaning to our existence. Art is as much for the mainstream as it is for the margins. The Constitution protects the ability of every individual citizen to believe as much as to communicate, to conceptualize as much as to share…Those who disagree have a simple expedient: of not watching a film, not turning the pages of the book or not hearing what is not music to their ears.”[xviii].

[i] Section 499, Indian Penal Code

[ii] 3754/2020 in CS(OS) 120/2020

[iii] Page 2, Paragraph 3, I.A. 3754/2020 in CS(OS) 120/2020

[iv] Page 3, Paragraph 4, ibid

[v] Page 3, Paragraph 5, ibid

[vi] 1977 Cri L J 21

[vii] (The English Reports, Volume CLXXV, Nisi Prius VI)

[viii] Page 8, Paragraph 14, I.A. 3754/2020 in CS(OS) 120/2020

[ix] 1984 Cri L J 1790

[x] 2008 (1) Raj 809

[xi] Page 10, Paragraph 16, I.A. 3754/2020 in CS(OS) 120/2020

[xii] Page 11, Paragraph 18, ibid

[xiii] Pages 11-12, Paragraphs 22-24, ibid

[xiv] Page 12, Paragraph 22, ibid

[xv] Page 13, Paragraphs 24 and 26, ibid

[xvi] Pages 14 and 15, Paragraphs 28-32, ibid

[xvii] Indibility Creative Private Limited and Ors. Vs. Government of West Bengal and Ors, AIR 2019 SC 1918

[xviii] Pages 17 and 18, Paragraph 16, ibid