New Delhi [India], August 25 : The Supreme Court on Monday told stand-up comedians Samay Raina, Vipul Goyal, Balraj Paramjeet Singh Ghai, Nishant Jagdsish Tanwar and Sonali Thakkar aka Sonali Aditya Desai to tender an unconditional apology on their YouTube channels, etc, for their alleged insensitive remarks against people with disability.
A bench of Justices Surya Kant and Joymalya Bagchi also asked the Centre to place on record the draft guidelines which are being proposed.
It said the guidelines to be framed have to ensure that the rights of all are protected without impinging upon individuals' rights, dignity, honour, and respect.
"Today, it is disabled, tomorrow something else. How will the society be affected...where will all this end?," Justice Kant said.
The Attorney General for India, R Venkataramani, representing the Centre, said that there cannot be a complete gag and agreed to place on record the draft guidelines which are being proposed.
The bench said the guidelines shall not be a knee-jerk reaction to any incident, but shall be wide enough to cater to future challenges.
"It cannot be a reaction to a some incident. Policy is for future challenges. That is why we said even if you have some policy regime... we will get some answers from experts as well," said the bench.
The top court also remarked that the judges can take a joke, but influencers cannot hurt community sentiments in a country as diverse as India.
"Humour is part of life and we can take jokes on us. But when you start making fun of others... There is a breach of sensitivity. India is a diverse country with so many communities, and these are the so-called influencers of today. When you are commercialising speech, you cannot use a community and hurt their sentiments," said the bench.
Justice Bagchi further said, "It's not just freedom of speech, but the question is of commercial speech. There are cases of classical, commercial or free speech. When we talk of commercial speech, then there is no freedom there."
The stand-up comedian appeared before the apex court today. The bench has now posted the matter for hearing in November.
The top court was hearing a petition filed by M/s Cure SMA Foundation seeking a prohibition on the broadcast of derogatory and denigrating content on the digital media against persons with disability. It had also sought the formulation of guidelines to safeguard the rights and dignity of persons with disability in the context of the broadcasting of online content.
On May 5, the bench had summoned the comedians to appear before it or face coercive action after the plea alleged that they ridiculed persons suffering from SMA, a rare disorder, and also those suffering from other disabilities on their show.
The top court had also issued notice to the Union of India through the Ministries of Information and Broadcasting, Electronics and Information Technology, Social Justice and Empowerment, News Broadcasters and Digital Association, and Indian Broadcasting and Digital Foundation.
The NGO brought to the notice of the court the broadcast of certain online content, media and programmes that are derogatory, offensive, denigrating, ableist or belittling to persons with disability, or their diseases, or their treatment options.
The petitioner was also aggrieved by the lack of any explicit statutory guidelines to sufficiently regulate the broadcast of such online content, which violates the right to life and dignity of persons with disabilities, while transgressing the qualified right of free speech and expression.
It asked the court to put a positive obligation on both the government and private actors to adopt a unique standard of representation of persons with disability in the online domain.
The NGO accused Raina of insensitive remarks on persons with such conditions, high-costing drugs and treatment options for Spinal Muscular Atrophy and also alleged to have ridiculed a person with disability.
It flagged videos where he made comments on persons with disabilities.
The petition said these comedians are public figures and enjoy a following of millions of viewers/users on various social media intermediaries.
"The petitioner is concerned by certain live and pre-recorded event videos of these individuals, due to their offensive, denigrating and dehumanising representation of persons with disabilities."
"These videos shed light on the widespread irresponsible, insensitive and violative dissemination of such online content that contravenes the rights of the persons with disability under Article 14 and 21 of the Constitution of India, propels offensive stereotypes and misguided portrayals against them, and detrimentally impacts their societal participation, and fosters insensitivity and inhumanity against them, and as such falls within the reasonable restrictions under Article 19(2)," said the petition.