Introduction: What’s happening?

The YouTube v. TikTok controversy is one of the major things which the whole nation is discussing. With tons and tons of videos pouring on YouTube and millions of tweets being made and retweeted has taken the whole nation by a storm. Though people have been sharing the roast reply made by Carryminati as a piece of humour, the roast has not been received well by everyone. As we read about the storm gathering against the whole YouTube v. TikTok issue, which has now culminated in a full-fledged cyberwar of words, we were disturbed by the ease at which homophobic, and misogynist comments were not only made, but very conveniently released on a social platform without any fear of accountability.

Just like obscenity, humour is very difficult to define, it is pretty subjective and any attempts at drawing demarcations fail miserably. Roasting in India is not an aged subject and at the same time very controversial. We are still struggling with the basic question of who gets to decide the “limit” of what can be said in the name of humour? It’s not just the need of the hour, but rather a necessity to analyse how Lawlessness of Humour has been plaguing the courtyards of our daily life, for as nation we need to put a full stop at the public usage of such filthy and abusive language coupled with the phobic ideology that they propagate.

The YouTube v. TikTok Roast: What’s wrong?

The whole controversy began with an Indian YouTuber, body shaming a TikToker. The issue was fuelled further when a TikToker by the name Amir Siddiqui made a video trying to roast the YouTube Community. However, the biggest turn in the chain of events took place when Indian Star YouTuber Carryminati made a reply roast. Carry Minati is considered as the face of Indian roasting community. Being a youth barely into his twenties, the way the youth of India feel connected to him is beyond explanation. He is known for his roasting which generally include use of strong language, but the issue which makes this whole controversy stand out is the homophobic and misogynist language used by this Star Youtuber in his recent video which broke a lot of records.

Homophobia and its deep roots in India are not something that has gone unnoticed. The Indian Courts have also taken note of how societal morality prevails over constitutional morality in this issue. However, the problem surfaces when stars like Carryminati trivialize the issue of the oppression of sexual minorities. Being not just local stars but rather Internet stars adds to the graveness of the problem.

Internet, with its speed, reach and efficiency has exacerbated matters. Communication on the internet is not only instantaneous but acquires publicity and a permanence unimaginable before. This makes this whole issue a lot graver, for not only does it amount to inciting homophobic ideology but also through its misogynist comments leads to outraging the modesty of women. Comments made by Carryminati such as “Mithai ki dukaan pe 200 Rs me bikjaayga”, “Meetha”, etc, are not just homophobic but up to a great extent defamatory to the LGBTQ+ community as a whole. However, all this melodrama has gone vastly unscathed by the claws of law owing to the lack of legal fervour in our country. It becomes pertinent to understand what Indian Judicial and Legal system says in this regard and how people who make such comments are liable for their words, which are highly derogatory to an individual and a community.

The Legal Perspective: Legality of Roasting in India

Whenever such issues are raised where an individual or a particular community was publicly shamed by words, people often take the refuge of their right to freedom of expression ensured by Article 19 of the Indian Constitution which protects people and their right to express and speak freely. However, the constitutional provision is guarded by some “reasonable restrictions” and under few stipulated parameters limits the freedom of expression of the media and press.

These restrictions come under the forms of subjective terms such as “decency or morality”. In view of the present context, it would be relevant to analyse the limits of decency and morality by subjecting this issue to the test laid down by Cockburn C.J. in Queen v. Hicklin [(1868) L.R. 3 Q.B. 360] which the Indian Courts while adjudging a matter relating to obscenity and public decency generally use. The test of obscenity chalks down the matter to subjecting it as to whether the tendency of the matter charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences and to those who are subjected to the matter in question. Now, when we impartially analyse the comments, they prima facie give off a stint of homophobia and toxic masculinism. Since the majority of the audience of YouTube are young men, these sorts of content are well enough to corrupt their mind-sets. Thus, making this whole roast fall outside the ambit of protection under freedom of speech and expression.

Another major issue with this video and is the bullying and harassment that it carries out. The video has used very strong language, which when weighed with its characteristic homophobic and misogynist nature is really disturbing for the community it has taken a shot at. There is no specific legislation that provides for the specific cyberbullying laws in India; however, provisions such as Section 67 of the Information Technology Act, 2000 deals with cyberbullying in a way. Section 67 of the Act prescribes punishment for publishing or transmitting obscene material in electronic form for a term which may extend to five years and also with fine which may extend to ten lakh rupees. Body shaming a woman in his video amounts to outraging the modesty of women and is punishable under Section 354 of Indian Penal Code, 1860; with a sentence of not less than 1 year and which may extend to 5 years with a fine. Whereas, Carryminati’s “Mithai ki dukaan pe 200 Rs me bikjaayga” and other such statements are a clear-cut example of cyberbullying and as mentioned above punishable under Section 67 of Information Technology Act, 2000. Speaking of the homophobic comments that Carryminati made in the due course of his 12-minute-long video, they are against the spirit of the Apex Court’s judgment which recognized the LGBTQ+ community and thus also against the spirit of Constitution as it tries to encroach on their reputation. The applicability of all these laws not only demonstrate the graveness of the issue but marks a point in time when India needs laws to deal with such issues of online bullying, harassment and promotion of homophobic content.

Conclusion: What needs to be done?

Roasting as form of humour is not something new but has continued since ages. There exists no reason to impose a general ban on it as it’s a way people bring about humour. However, the problem arises when this humour crosses the boundaries of morality and from natural and light humour gets transformed into bullying and harassment. Youtube v. TikTok controversy is but a grain in this sandy desert of outraging humour in name of ‘Roasts’. The video has finally been taken down by YouTube as it clearly violated “YouTube’s Policy on Harassment and Bullying.” The world was enraged at the homophobic nature of the roast and some even went to the extent of claiming that YouTube pays creators who spread Homophobia in South Asia. Taking cognizance of the matter Sunder Pichai, CEO of Google, sent an email to LGBTQ+ employees stating that YouTube was taking a ‘hard look’ at its policies. Though this issue has for the time being cooled down, it’s not to be seen as a settled issue. India lacks any specific legislation to deal with the issue of cyber bullying and harassment. Though our legal system boasts of its robustness, this whole controversy has opened the flesh of these baseless claims to their bones. Indian legislature no longer can turn their eye away from growing incidents of cyber bullying and harassment. The profound impact these controversies creates an impact on the mental health of victims is beyond our comprehension. A prudent man is someone who cures the damage but a wise man is someone who can prevent it from happening at the very first place. This whole controversy presents before us a prospect to develop sacrosanct and prospective laws to address these issues of Cyber bullying and harassment. With the day by day increasing mobile user base of India, it’s just a matter of days before such issues would start cropping up at daily basis. Hence, for avoiding such future controversies, its high time that these issues are taken up and deliberated to form better laws to prevent these to occurring or if they do occur providing a streamlined approach to end this conundrum.

ABOUT THE AUTHORS

Mohd. Rameez Raza

Mohd. Rameez Raza is a third-year law student pursuing BBA LL.B from Faculty of Law, Integral University, Lucknow. He is an experienced Legal Researcher and Policy Interventionist, with a keen eye for detail. His areas of interest include International Law, Human Rights Law, and Indian Constitutional Law.

Raj Shekhar

Raj Shekhar is a first-year law student pursuing BA LL.B from National University of Study and Research in Law, Ranchi. Being an avid reader, he likes to read and write about contemporary developments in the legal field. His areas of interest include Cyber Laws, Indian Constitutional Law and Intellectual Property Rights Law.