Bombay HC grants Kunal Kamra protection from arrest in FIR over Shinde joke but probe to continue

synopsis

Kunal Kamra (Photo: @kunalkamra88)

Image Credit: ANI

The Bombay High Court on Friday directed the Mumbai Police to not arrest stand-up comedian Kunal Kamra in the First Information Report (FIR) lodged against him, over his satirical video and "gaddar" comment purportedly made against Maharashtra's Deputy Chief Minister Eknath Shinde.

According to Live Law, a division bench of Justices Sarang Kotwal and Shriram Modak said Mumbai Police should go to Chennai (close to Villupuram where Kamra resides) and take help of local police, if it seeks to record Kamra's statements.

Kamra, who presently resides in Tamil Nadu, was earlier granted interim anticipatory bail in connection with the Mumbai police FIR. The initial interim protection, which ended on April 7, was extended up till April 17.

A zero FIR was lodged against Kamra under Sections 353(1)(b), 353(2) [Public mischief] and 356(2) [Defamation] BNS by Shiv Sena MLA Muraji Patel. The FIR was later transferred to Khar police station in Mumbai. 

The bench had reserved its judgment on April 16, wherein the bench had granted interim protection from arrest to Kamra while noting that the police had issued summons to him under Section 35(3) BNSS which specifically refers to notice where arrest of person is not required.

Case arguments

Senior Advocate Navroz Seervai for Kamra, had argued that the comedy clip in question, fell within freedom of speech under Article 19(1)(a) of the Constitution and not within the exceptions to freedom of speech. He had stated that the FIR against Kamra exemplify an "attempt by the State at the behest of a political party to make an example of an artist".

Seervai had also highlighted that Kamra received several death threats from Shiv Sena workers and despite the threats, the police demanded his client's personal presence for the investigation.

Further, Seervai had maintained that the contents of comedy video did not intend to cause fear or alarm to the public to commit an offence against the State or against the public tranquility. It was argued that the satire video cannot be taken seriously or on face value and that Kamra expressed personal views on the split in Shiv Sena, which is a factual aspect.

Seervai had referred to statements of various politicians including now deputy CM Ajit Pawar and Shiv Sena (UBT) leader Uddhav Thackeray, who too have called him a 'traitor' on public platforms but no action has been taken against them.

"But a comedian is to be crushed, harassed, terrorised, victimised and a signal sent out to all artists - that 'you better watch out if we don't like it this is what we will do to you through the police'," Seervai had argued.

Chief Public Prosecutor Hiten Venegaonkar had argued that the contents of the comedy show was not a political satire but 'malicious targeting' and thus Article 19 of the Constitution does not come into play when a cognizable offence is made out. The PP maintained that Kamra was targeting one individual and thus it did not fall within the tenor of humorous criticism.

“When artist, stand up comedian, puts up his piece his criticism should fall within tenor of humorous criticism. When you are targeting one individual it does not fall in bracket of humorous criticism; it is malicious targeting," Venegaonkar had argued.

Venegaonkar also argued that under the guise of Article 19, one cannot target an individual and lower his dignity and that Kamra's comedy lowered Shinde's dignity. He argued "Petitioner can't say that I have dignity and rights and reputation but public figure has no rights and then you start maliciously targeting the individual. Reading of our FIR clearly demonstrates that it seeks to lower the person's dignity in the society...Article 21 which is referred gives dignity not only to person who has made the joke or statement, but also against whom statements are made, he also has right of Article 21, a right to lead dignified life. He cant be tarnished on his looks. He has a family. Merely because you want to do some parody on somebody's reputation, it will not take you out of clutches of law."

On the threats received by Kamra, the prosecutor had maintained that the State would protect him as the State has responsibility to protect everyone.

Kamra vs Shiv Sena

Though Kamra had not directly taken the Deputy Chief Minister Eknath Shinde's name, the party workers allege that he had called Shinde a traitor while referencing to his split from the Shiv Sena. Offended by Kamra's remarks, a group of Shiv Sena workers had also vandalised Mumbai's Habitat studio, where the comedian had performed the show.

Twelve people were arrested in connection with the violence that had erupted and were subsequently granted bail. Kamra claims he has been receiving death threats since the show.