‘Hasmukh’ Smiles Its Way Through Online Streaming In India

During the persisting lockdown for the entire nation and different parts of the world to contain pandemic situation, the Media and Entertainment industry has been able to utilise the situation in its favour by introducing myriad of web-series in the over the top (OTT) platforms to keep the public engaged and entertained during the lockdown situation. One such series introduced on the Netflix platform is “Hasmukh” which is a dark-comedy web series in Hindi Language. However, an interim application was filed against Netflix Inc. and Others (“Defendants”), by the Plaintiff who is an advocate by profession on the grounds of defamation to the legal community. The Hon’ble Delhi High Court dismissed the application on the grounds that the Plaintiff failed to establish a prima facie in its favour and also observed that the web series is a work of fiction and the content is to be taken in the context of a figment of imagination and humours and not as a matter of truth.

Facts:

A suit was filed by the plaintiff seeking permanent injunction against telecast of the web series “Hasmukh” alleging that the Episode 4 of Season 1 of the show contains a scene wherein the protagonist makes statements/comments on the legal community as a part of his stand-up comedy performance in the episode 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.” 

Contentions of Plaintiff:

The Plaintiff contended that the said episode contained derogatory remarks against the legal fraternity and that the intention of the Plaintiff was not to highlight the defamation of an individual but to restraint the defendants from the webcasting and thereby passing scandalous statements or comments on the legal community. The Plaintiff submitted that the aforesaid remarks were not humorous or within the boundaries of a critique, but were highly disparaging, defamatory and brought disrepute to the legal fraternity in the eyes of the general public. It was contended that such statements are indicative of constant stigma on the image of the lawyers and a constant source of annoyance to the Plaintiff, lowering the image of lawyers and the Plaintiff amongst the public at large.

Contentions of Defendant:

The senior counsels appearing for the Defendants contended that Plaintiff has failed to show any prima facie case and has not been able to even show any personal injury or violation of any right entitling him to grant of any injunction. The Defendants went on to explain the theme or the plot of the series as below so as to throw light on the context on which the impugned statement/comments were made by the Protagonist in the show:

i) The said web-series is a dark comedy about a small-town comedian namely ‘Hasmukh’ (‘Protagonist’) who arrives at Mumbai to pursue his career in stand-up comedy on television shows. In the said Web-Series, the Protagonist has been shown to have a unique trait whereby he can only successfully perform his stand-up comedy act, if he commits murders prior to his performances and makes satirical jokes in relation to his murder victims during such performances. As per the storyline of the said Series, in order to address his need to kill in a righteous way, the Protagonist therefore kills only evil and debauched persons from various fields and professions that he comes across in his life and then performs satirical jokes/remarks in relation to his experience with such victims in his stand-up comic act.

ii) In line with the central theme, in Episode 4 of the said web-series, the Protagonist has been shown to have a harrowing experience with an aberrant lawyer (“said lawyer”) upon his arrival in Mumbai, who has been shown to be immoral, dishonest greedy, violent and threatening with underworld connections, who not only tries to dupe the Protagonist into executing an unfavorable contract but also quotes a very high professional fee for drafting the contract. Subsequently the Protagonist murders the said lawyer and the Protagonist performs a stand-up comic act, wherein he makes reference to lawyers in Mumbai.

It was contended by the Defendants that a class of persons cannot be defamed as a class, nor can an individual be defamed by general reference to a class to which the individual belongs and in case of a defamatory imputation they must contain an imputation concerning some particular person or persons whose identity can be established. It was contended that where there is a statement describing a very wide class of individuals such as the reference made to lawyers, without identifying individual members, it cannot be said that lawyers have been defamed as a class or that individual members such as the Plaintiff have been defamed for belonging to the class of lawyer. It was further contended that the Plaintiff had failed to disclose any cause of action to file the suit or that he has suffered any irreparable loss or injury.

Decision:

Stand-up comedies, satires and freedom of speech:

The Hon’ble High Court made elaborate observations on the performance of stand-up comedies and rendering of dialogues by such comedians especially by way of a satire. The Court observed that it is a known fact that stand-up comedians exaggerate certain points to an extent that it becomes a satire and a comedy. People do not view the comments or jokes made by stand-up comedians as statements of truth but take them with a pinch of salt with the understanding that it is an exaggeration for the purposes of exposing certain or shortcomings. Further, drawing connection with the case in hand, the Court observed that when the impugned episode is viewed it prima facie gives an impression that the protagonist, after having suffered at the hands of a member of the legal profession who has tried to exploit him, appears to be exaggerating the issue for the purposes of highlighting the ills of the profession. The Court categorically observed and upheld that the very essence of democracy is that a creative artist is given the liberty to project the picture of the society in a manner he perceives and also went on record to state that one of the prime forms of exposing the ills of the society is by portraying a satirical picture of the same as performed by stand-up comedians.

Absence of essentials of injunction

The Court noted that the impugned comment was a satirical comment with regard to the lawyers taken as a class and was not with regard to any determinate, definite or identifiable group of lawyers and furthermore, Plaintiff had not been able to show that the impugned comment in any manner referred to the Plaintiff or to a definite group of individuals or lawyers out of the entire class of lawyers to which the Plaintiff belongs. In order to support its observation, the Court relied upon orders passed by various High Courts such as in the matter of Asha Parekh and Ors. v. The State of Bihar and Ors, Narottamdas L. Shah Vs. Patel Maganbhai Revabhai & Ors and Shah Rukh Khan Vs. State of Rajasthan and Ors, wherein it was unilaterally observed that defamation or such imputation should be directed towards a particular, identifiable individual(s) and not towards a class of persons without a determinable individual. The basic principle for grant of an ad interim injunction under order 39 rule 1 and 2 Code of Civil Procedure is to prevent an injury to the plaintiff or to restrain the defendant from committing inter alia injury of any kind to the plaintiff. Further, Plaintiff was not able to show that there existed a prime facie case in favour of the Plaintiff or that he would suffer irreparable loss or injury if ad interim injunction was not granted. The balance of convenience was also not in favour of the Plaintiff.

Conclusion:

Based on the well founded and reasoned judgements by various high courts in the country, the Delhi High Court dismissed the interim application for want of cause. However, it is to be noted that the main suit is pending for disposal. Further, it is pertinent to note that the High Court has gone a step forward to observe and recognise the acts of stand-up comedians as one which should be protected under the right of freedom of speech and expression as guaranteed by our Constitution, which is also one of the important reason for dismissal of the impugned application. Such orders show the progress and dynamic attitude of the Courts to the changing environment owing to technological advancement and the subsequent change in societal thinking owing to the same.


Contributing Advisors