No Justice For Common Man Shahrukh Alam

TITLE: No Justice for Comman Man | Nope w/ Kunal Kamra ft Shahrukh Alam | 047 CHANNEL: Kunal Kamra DATE: 2025-11-06 ---TRANSCRIPT--- internet. Nope. Not your ordinary podcast for entertainment. Nope. Nope. Nope. N.

Do average common citizens fear the law? And if they do, why do they fear the law which is there to protect them? I think we we’ve always been taught that if you’re an upstanding citizen, then there’s no need to fear the law. But what happens if you’re an upstanding Adiasi citizen or if you’re an upstanding citizen of one of the forest tribes and you have to go into the forest every day to to gather to gather a wood and to gather leaves etc. And there’s a sudden notification that gives the power to the forest department or to to the police even to stop you at will to search you to seize to surveil. What happens then? Because because your status as an upstanding citizen can be upturned at any time. Similarly, what happens if you’re homeless and you’re sleeping on a bench and there’s a law that you can’t be found sleeping on a on a public bench. then that particular law applies only to those who are upstanding but unfortunately homeless. If you ha have a home to sleep in, then then you have nothing to fear from that law. You can continue to be upstanding. But things like homelessness, things like needing to collect uh from the forest sometimes come in the way of being an upstanding citizen in the manner that the law requires you to be. And then recently there’s there’s been uh another case where a very fine stand-up comic was performing in Bombay and I’m sure he thought he was doing something that was not against the law. He’s quite upstanding as well. But law strikes in strange ways. Law comes in disturbs you in strange ways. And that is that is I think the reason to fear the law because if because it’s uncertain because you don’t know how it will come to hit you. And why is it uncertain? One of the major basic functions of law is to ascribe meanings to everyday actions. And law classifies things for us. It organizes our cognitive abilities in particular ways. It tells us what is good, what is bad, and what is good violence and what is bad violence. And there’s this example of uh the the offense of kidnapping or abduction. For instance, we all know that it is illegal to confine a person against their wishes and coers them to do something. If you do that, you will get arrested, you’ll be get you’ll be tried for it. But on the other hand, if the police does that to a person, if the police detains a person only in order to coersse them to make a confession or to give a statement, then they’re well within the law. So even detention in order to coersse can be good violence. It can be bad violence and law organizes that that kind of classification for us. Look at capital punishment acceptable if not good violence. So there is always that uncertainty and also there’s always that inequity in law. The state always has much more power even within law. Good violence is always associated with the state and bad violence is always associated with people especially people who challenge the state’s authority. That’s that’s always bad violence. The state gets away with a lot. But we let it get away with a with a lot because we think that the state is doing it for public interest and it’s neutral in the way that it that it functions and we think that the state has noble intentions. But what happens if the state’s actions are not neutral? They’re not impartial. What happens when it’s more favorable to certain people or certain communities or certain classes than it is to others? That’s something to think about. The second is that I think people fear the law even more when there is more uncertainty in terms of the interpretations of law, especially interpretations of criminal law. And that’s because the meanings are constantly shifting. I also noticed that the last time you were in trouble with the law, or maybe that wasn’t the last time, maybe you’ve been in trouble since, you used to bring out the constitution each time, and you used to say that the constitution gives me the right to say what I will. And I always thought that, you know, if you have to bring out the constitution to defend a very normal act of of, you know, public speech or or satire or making fun, then a a threshold is al already very low. It’s almost like, you know, going to a shop and saying, “Please give me something because I’m a Muslim, but but I have the right to buy from any shop. Here’s the constitution.” So to be invoking the constitution at the drop of a hat is already the threshold being very very low and this wasn’t the case but so it means that meanings are shifting. There are more there are more kinds of violence there are more kinds of speech acts that are suddenly now being classified as illegal as criminal. So basically like for an artist or any comedian and stuff like that when we started doing comedy in 2012 13 15 14 it was like okay there’ll be multiple cases against you you’ll not be able to deal with it you don’t have the money to deal with it. Yeah. So you know avoid these things don’t talk about these subjects or don’t be provocative. Then came 16 17 18. Yeah. Then it was like we’ll beat you up, we’ll ransack your venue, we will make sure that there are enough threats, you won’t be able to travel. And that made me as a comedian realize court case is not a bad thing. if mob violence is the other option and that’s when I started thinking that you know who are my friends whose lawyering I like and who like my comedy can we work together and I had to bring about that alliance because I realized that the more we fear quotes while we are upstanding and we are without any malice bias may be there malice is not there why should we take a step back and that’s when I started looking at the Constitution more as a freedom manual than as a rule pick. But I’m not I’m not saying that you shouldn’t invoke the Constitution. I’m I’m I’m making Yeah. I’m I’m just I’m just commenting that absolutely you’re right that you know the need to invoke it. Yeah. At every corner is is already a lowering of the threshold. But but I I appreciate what you’re saying and I think two things have happened here. There there are two shifts that have happened. More speech has now been classified as bad speech. Yeah. Right. More speech has now been classified as illegal speech. And then correspondingly as a as a mirror image, more actions, more reactionary violence has been classified as acceptable violence. And both things have happened together. So you you’ll find that you you you’ll have less of a case in court or other people will be able to go to court more easily against you to prosecute your speech. That’s one part. And the second is this mob violence has also become more acceptable. So this cognitive reorganization has happened right before your eyes. There was good speech, bad violence and now that bad violence is acceptable violence and good speech is illegal speech. What what are the other shifts? The other shifts I see is this broadening of the category of national security. Anything goes. So suddenly speech can be a problem to to national security and then that means that it becomes illegal immediately. Again in your example, I think political figures came to embody the state itself. So if you’re making fun of political figures, it was seen as making fun of the state. So political figures embodying the state is again a new phenomena. That’s again a new shift. That wasn’t the case earlier. It shouldn’t be the case. [snorts] The third thing that I noticed and the reason that we should fear the law is that this shift in meanings is happening on the go. And I’ll I’ll give you examples. But other than that, morality also is now uh being used as an interpretation of the law. For instance, judges now feel that they don’t need to subscribe legal reasons for what they are saying in court. The uniform civil court for instance, it makes it mandatory for living couples to register themselves. So if you’re living with a with a partner, you have to go to the government, declare that you’re so living and register yourselves. And some people went to court against this in Uttarakand. And the first thing the judge said to them was, “If you’re so shameless, uh if you don’t even care about your parents’ feelings, then you may as well declare to the whole world that that you’re living in sin or that you have a partner.” And I was I was struck by this because because this is the kind of thing you you’d perhaps say to to to a nephew or to a to a niece or to a son if you’re a if you’re a if you’re that kind of person, if you’re conservative, but to to transplant that morality of how you how how you are with your family, how you run your household, how you behave with sons and daughters and nephews and nieces and ascribe that and give that political ing is a problem, right? It’s it’s about how you’re judging somebody, but you’re also making that now into constitutional law almost. If you have to register a living relationship, then marry only, right? Marry only or if you parents this is this is what he said. So he he’s not concerned with issues of privacy. He’s not concerned with issues of liberty. He he can’t see the difference between state and and you know doing something visav parents, family, friends. So all I felt that in that moment all his morality or all his distorted morality rather came out and he transplanted all of that into into the case and we see that all through. We see that in matrimonial cases, all kinds of cases where where judges would say to the wife that you know what is going on, why are you not adjusting? It’s it’s it’s more like a panchayat kind of response rather than an adjudication in law. Uh not even constitutional law, an adjudication in law, following process, following procedure. And again, we see saw that in uh Ali Mahmud Ababad’s case, which is which is actually going on. The first thing the court had to say was why did you say this at this time when when people are feeling sensitive when people are charged why did you have to say that that has nothing to do with the law laid down. Uh so my point is that this panchayat morality which is far removed from adjudication is about how to get things in order how to make sure that they don’t get blown up. Constitutional courts are now involved in this which is which is a pity. If at all Ali Mahmud Ababad’s tweet or his post had to be judged, it will have to be judged on the basis of law laid down. We don’t get to that stage. So law is something that’s now almost becoming academic. The courts are the court practice is now something very different and we see that across the board. uh the first thing that the courts ask you to do is to is to pull it down whatever it is that you’re supposed to have written and that’s supposed to have offended certain people and that’s across the board. And the point I’m I’m trying to make is that now they’re they’re not differentiating, they’re not sifting, they’re not really looking at freedom of speech. The courts are now looking to manage law and order, which was really the job of the district magistrate or the local police. So So that’s that’s one problem. Then the next point why should we fear the law and I think this is again something that that which has seen a shift. I think the any state’s commitment to the rule of law can be gleaned from how much freedom does it give to its prosecutors to bring a case to court relying solely on social and political and racial prejudices. So they don’t have a case. They’re building up a case only by relying on prejudices. And we can glean a court’s commitment to rule of law by by seeing how much space they are giving to such prosecutors. Now, unfortunately again in case after case, you’ll see that prosecutors are bringing in cases solely on the basis of prejudice, solely on the basis of who you are, what is your identity. And I FIR 59 of 2020 is the prime example. That’s the one where some young people, students, civil society activists have been accused of having engineered a deeprooted conspiracy to to create violence and and rioting in Delhi. And the the FIR reads thus that the the charge against one of the prime accused Omar Khaled is that he gave Muslims a vocabulary to articulate their grievances and he helped in the mobilization of Muslim critical mass. [snorts] Now even if this were to be taken at face value, what is the problem with this? How is this a problem? This is his democratic right. This is his fundamental right. But the point is that prosecutors have been able to bring this court this case to court framing it in such language and the courts have given them 5 years to carry on with this. Normally the the court should have thrown this out on the first day. There should have been no question of bail. The the case should have been cauted just for the the the the language in it in which it’s framed. But that hasn’t been the case. and the organizers of the anti-CA protest are having to now bear the burden of others having got provoked and assaulted and rioted against them. So the prosecution’s case is that you organized, you got Muslims together, some people got provoked, there was violence, you are responsible for it. This is again an inversion of the law because provocation in law is always a shield. It’s never a sword. So if if you say something and I get provoked and I assault you, normally you are not responsible for it, I will be arrested for having assaulted you. And then in court I’ll say that that kunal provoked me so much. I couldn’t help myself and that’s why I assaulted him. So provocation is always a defense. It’s it’s never a sword. In this case, had they arrested Kapil Mishra, for instance, he could have said that Omar Khaled um provoked me into doing what I did. But here, Omar Khaled and the others are having to bear the entire burden of having provoked them into violence. So, it’s a complete inversion of the law. Another reason why we should fear the law because it can be inverted at will. Look at look at other cases at the same time. There were there were incidents in Kas Ganj in UP and then Bahrain in UP in the aftermath of uh Da Puja Varjan processions where there was a procession going and they got into somebody’s house and planted a a saffron flag at top his terrace and also were damaging his property inside this house. This person shot dead or or assaulted something happened. Two people in the procession ended up dying. This person is now obviously under arrest charged with all kinds of sections. But there’s no parity between similar cases. In one case, you are having to bear the burden of other people getting angry because you were protesting. But in other most other cases, you go out in a procession. You actually provoke. You cause violence. When there is retaliation, you go scot-free. The person who did retaliate has to again solely bear the burden of the violence. So there is no parity again uncertainty again shifting meanings. And the last case that I want to talk about is Zuber. Muhammad Zuber the the fact checker. Yati Nar Singhanand is a habitual hate blocker and he gleefully violates Supreme Court directions all the time. So he’d said something. Yeah. Zuber amplified it. There’s now a criminal complaint against Zubair for having amplified it. Yeah. None against Yati. Yeah. And the Alahabad High Court while refusing to caut this this FIR said that the police will have to really look into why you did what you did. Maybe you were motivated. On the face of it, you you don’t seem to be, but maybe you were motivated. So, they’re not cautioning it. This is again a reconstitution of violence. Violence is not happening with when Yati Nar Singhan says what he does. It’s happening when Zuber is reporting on it. So reportage, reporting about violence now is reconstituted as a crime, not the original problem that was being reported about. Another reason to fear, but I think primarily why we fear the law is also because of the enforcers. That again is something very particular to to the colonies actually because if you look at the UK, if you look at Europe, if you look at the US even despite all the problems, their laws of arrest are very uh very straightforward. They can bring you in when they’re ready to charge you. But in the colonies, they didn’t trust the the the native enforcers. So the the the point of investigation began when a crime happened and Dro would would just order everyone who was associated with that particular incident or who was on the scene to be brought in and that was the was the point of investigation. So investigation began with an arrest and then everyone’s just lying in jail. For every one case, you’ve arrested 8 to 10 people. So there are 8 to 10 cases then going on in court. Everywhere else arrest can only happen after an independent uh investigation has happened and you’re ready to charge them with independently collected evidence only to corroborate only to confront them with evidence not to collect evidence through my custodial interrogation. So that is the big difference. In India we have no juristprudence on remand. The thinking is that of course you’ll be arrested. You’ll be arrested at the commencement of investigation. You’ll be presented before a magistrate. Magistrate will obviously grant police police custody or judicial custody. Bail has to be separately argued. Everywhere else the magistrate has to explain why he’s he’s granting remand. Bail bail is not even argued. They have to first say why should you be in custody here? It’s the default position. So if if that’s how it is, if you can be booked so easily and then if you can be arrested so easily and then if you remain in jail without trial for long periods of time, then that’s something to be very scared of when it comes to criminal law. Correct. And that’s why we are fearing the law. That’s why we are fearing the law conceptually and the way it’s then practiced on us. You know, also because investigation is is what it is and investigation hinges on arrest and custodial interrogation and usually does not uh result in convictions. Although you spend years and years in jail, when the trial happens, usually people are acquitted because there’s never enough evidence. I’ve had sitting judges say this publicly. They say that you know we know that this person will not get convicted and therefore when somebody comes for bail in a serious case we just measure the amount of time that he spent in jail preconviction pre-trial. So if it’s a murder if it’s 302 and he’s only been there for 6 months we’ll never grant him bail. We’ll say come after another year or come after two years. So so this is how the criminal justice system is working. It’s got nothing to do with facts. It’s got nothing to do with the letter of law. It’s about context and and practice and instincts. Judges feel that this person should at least spend some time in jail because he’ll never get convicted. But they could be wrong because they haven’t really sifted through the evidence. It’s it’s very first impression. So So that is that is what it is. when uh when you did your show and when there was this FIR against you, when they talked about how it was you created public nuisance, there was there was a lot of trolling of course and one narrative that came out was this comparison with another person who’ earlier blasphemed the prophet and got into trouble for that. And people said that liberals only speak when it’s one of their own and they never invoke the constitution. They never invoked freedom of speech when this person blasphemed the prophet. And I just want to say that that again is a very false equivalence in law and otherwise and politically because the the the juristprudence of hate speech considers the dynamic of power in society. It it talks about the pos positionality of power and hate speech is very clear. It’s not about causing offense. Offense is not the problem of hate speech. The problem of hate speech is that by constantly targeting a community, making fun of their religion or custom or whatever it is, you’re politically marginalizing them and socially marginalizing them. You’re pushing them into a corner and and that is the problem. Discrimination, marginalization is the problem. Offense is not a problem. Your speech on the other hand was according to me punching up. can’t whatever else it can be accused of it cannot be accused of being discriminatory or causing political or social marginalization. If anything it was the opposite. So to equate dissenting speech or to equate a speech that is that is critical of the government or government policies or government figures with a speech that is meant to target a marginalized community that is punching down is a very false equivalence. That is that is one thing. The second thing is that blasphemy was usually associated with Christianity and Islam and and Judaism the loosely the Semitic religions. It it it wasn’t associated with Hinduism at all. But the IPC retained blasphemy. Uh there are sections which make it an offense to outrage religious feelings etc. or to cause insult to somebody’s religious faith and that’s applied across the board that that’s applied to Hindus as well in India but traditionally historically that wasn’t the case but because there is a law it’s used across the board but blasphemy has a very specific history in Islam in Judaism and it’s misused a lot in places like Pakistan for instance where again it’s it’s used against the poorest the most marginalized Dalith Christians but it’s also a fact that that fact is then used in India in the west to show it up as another another example of Islam’s intolerance but there are different contexts to blaspheme the prophet or to talk about the prophet in in in India in the Indian context is not the same as what happens in Pakistan it’s entirely different what this person did was targeted hate speech. It was meant to uh humiliate. It was meant to insult with impunity. So again, that that equivalence is very wrong. But even when they did when they do falsely uh equate your speech with that speech, I think the biggest problem with that is that they’re not pushing back. They’re not saying that all kinds of blasphemous speech should be reconsidered. Uh we should push back quoting freedom of speech. This is a form of what about they saying which really then expands the scope of blasphemy. She had spoken about the prophet. You have spoken about a political figure. This is not a push back against blasphemy visav freedom of speech. What this argument does is really to expand the scope of blasphemy and to suggest that even political figures should not be criticized, should not be spoken about. even they they should not be blasphemed against really it’s it’s restricting the scope of freedom of speech. It’s not doing anything more than that. It’s it’s entirely a false equivalence. And we saw that happen again in Ali Mudabad’s case to equate what he had said with what this person from Madhya Pradesh the leader from Madhya Pradesh had said is entirely a false equivalence. And in doing that you you’re just trying to keep everyone happy. You think you’re trying to balance things out. But legally, constitutionally, ethically you’re doing the exact opposite. So now when we come to these sort of the false equivalence there and also what was asked when it is compared to some someone’s nonviolent uh words to create humor. Yes. Is totally different than a political party spokesperson othering. Exactly. But while they cover those two things, they club it. He’s saying they’re not saying that you should not be blasphemous or you should not hurt people’s feelings. They are asking me why don’t I hurt Muslim feelings? Yes. Yes. Which is even more bizarre. This is even more bizarre. So if you are what do you want people should not joke about religion or do you want people should only joke about one religion? When they ask you that though that that cannot be a legal question of you. You’re not legally bound to do that. But it it’s it’s possibly a political question. Yeah. Why are you picking on on Hindus only? Why are you not but but there is a legal answer to that which is which is the Jewish prudence on hate speech as a satirist as a as a as a political person. You will always punch up and not punch down. Yeah. Because if you if you pick on Muslims in this moment in India, then you will add to the cumulative hate speech that is going on against them. Right? Hate speech is always a majoritarian problem. It’s it’s only majorities can indulge in indulge in hate speech to target somebody on the margins. Right? If it’s if it’s the other way around then in terms of hate speech juristprudence and in and in terms of good politics I think you’re doing the right thing. If you were doing it in Pakistan then it would be a problem. That’s what I was just going to say. If my greatgrandfather did not shift from Sind Karachi maybe I would be joking more about Islam. Yes. Yes. Or if you did if you if you weren’t making fun of Muslims in Arabia, if you weren’t making fun of Muslims in Iran or in Pakistan, then it’s a problem. In India it’s it’s not because you’re not targeting somebody on the margins. So let’s come to the next side of the question which is the judiciary and its role. Yes. What happens there? Well according to me they should be adjudicating more and adjudicating applying principles of law constitutional principles. They seem to be doing less and less of that and more of um managing managing feelings, managing political sentiments and and and and all all sort of balancing which is really not their job. That is the job of the uh the administrators. The other thing that they should be doing according to me and they’re not doing is that they they’re looking at individual cases and meeting justice sometimes in in in in individual cases giving bail or stopping a demolition etc. But they’re not looking at patterns of of oppression. They’re not looking at all these cases where people are in jail uh for either being dissenters for either having said something against the establishment or a lot of times for their identities. So while they grant individual bails and justice chandul when he was retiring famously said that I’ve granted bail from everyone to a to zed but I think what he’s not done is not undone the pattern of of oppression not undone the pattern of arbitrariness a very arbitrary application of criminal law he’s not cauted cases he’s not not him the judiciary as a whole has not ended cases the best we get now is an interim bail or protection from arrest but they don’t go beyond that they don’t they don’t caut this is malified a prosecution they don’t say that you were wrong to register this file don’t do this again so these are these are proportionately very small reliefs and really the least that we can get I suspect we are getting these small reliefs because again there’s there’s an attempt to to balance things and there is a a general juristprudence of suspicion that unless proven innocent we will not we will not disturb things. We will let the police carry on. We will we will we don’t want to be the ones who who actually do away with any any presumption of criminality. But to come back to the patterns even with with demolition, you stop one demolition, you stop two demolitions, you’re not calling out that that pattern of of of arbitrariness of of what is going on. And then when there are violations of your order, you’re not striking down. You’re still treating the the state with a lot of respect, with a lot of respect that it doesn’t always deserve. you’re always giving second chances and third chances to to the executive to officers which you don’t give to citizens even even things like um bail and especially if it’s something political especially if it’s something controversial it’s part for the cost for the state to walk in and and ask for an adjournment uh they need two weeks to file something or 3 weeks to file something and somebody’s liberty is at stake on the other hand if a private litigant were to demand that kind of time while in a case visa v the state they’d never get that kind of curtsies they’d never get that kind of uh relief from the state from from the court so the court also uh doesn’t treat the state and the citizens at par there is always that dynamic of of power and that has a bearing on how how cases are decided so if two people there was like a property matter. Yes, they would never be given 4 weeks to find something if there were two citizens possibly. Yes, they would be. But supposing supposing the state sends me a notice, yeah, of demolition even you bring your papers or we’ll demolish and I come to court and I say, “Oh, I need four weeks because I don’t have my papers ready.” I I won’t get that kind of time. Got Or if if I’ve been called for interrogation and I appear before court and I say today I don’t have my papers ready or I don’t have time I I’ll go after 4 weeks let them wait. I won’t get that kind of time. But if I’m in jail and the state says I don’t have my papers I need 4 weeks then they’ll get it for the asking. So does diversity in judiciary matter or does it help? Yes it does matter. I mean diversity anywhere matters but but I think in the judiciary it does matter. I I’ll start with a very tangential thought. I was again going back to this controversy just before Chief Justice Chandraur retired. uh he he’d made a reference to communing with the deity before he wrote the Ramjan bhumi judgment and there was a there was an outcry but I was also thinking that that even to give him the benefit of the doubt he’s he probably meant that he was meditating he was he was doing something he was looking inwards I was wondering how it helps for somebody of a particular class or cast and gender to to look inwardly to find his morality because that’s always a morality without without context. That’s the kind of morality where you think it’s okay to surveil poor people because they they they might be thieves where you think it’s so because you don’t know what is going on in their lives. M um it’s a very inward positional kind of morality and and that’s something I was struck by because if if a lot more judges do that anyway they come from a a you know a very specific class and cast and religion and strata of society and then if they start to find their morality within themselves we’ll have a lot of problems because they’ll have they’ll be even less contextualized so yes so I think diversity is important I think judges should also be more diverse in their politics, in their opinions, in in their experiences, in their encounters. It’s I don’t think it’s just sufficient to have x number of women on the bench and x number of Muslims on the bench and x number of Christians on the bench because if they’re similarly thinking then then they’re not really very diverse. We need people with with different politics and different experiences. And again, when when the state allows prosecution to bring in criminal cases that rely on social political prejudices, it does have a bearing on how diverse or how less diverse the bench is. Mhm. For instance, if a judge listens to the prosecution say that this person was articulating Muslim grievances and mobilizing Muslim critical masses and doesn’t laugh in the face of the prosecution and doesn’t throw that case out, then there’s a problem with diversity also. If the judge is wondering why why how is it that Muslims in India have any grievances? They’re the most appeased minority. they’re the most pampered minority and therefore he’s actually admitting that case and listening to that case then that that is a problem of diversity. So we need people who who can understand uh the points of view of of others who can who understand why Muslims have grievances in India or why Dalits are so angry or why where Christians are coming from when they say that when we talk about conversion and there are there are some very good judges on the bench who who who I think empathize and who do understand but there’s always the question of the that particular voice So therefore context and diversity is very important. Thank you so much for your time. I had a great time talking to you. Thank you Kunal. Thank you. [music] [music]