The article is an excerpt from the judgment of Justice Kishan Kaul in Maqbul Fida Hussain v. Rajkumar Pandey (2008)
Pablo Picasso, a renowned artist said, “Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.”
Art, to every artist, is a vehicle for personal expression. An aesthetic work of art has the vigour to connect to an individual sensory, emotionally, mentally and spiritually. With a 5000-year-old culture, Indian Art has been rich in its tapestry of ancient heritage right from the medieval times to the contemporary art adorned today with each painting having a story to narrate.
Ancient Indian art
Ancient Indian art has been never devoid of eroticism where sex worship and graphical representation of the union between man and woman has been a recurring feature. The sculpture on the earliest temples of ‘Mithuna’ image or the erotic couple in Bhubeneshwar, Konarak and Puri in Orissa (150-1250 AD); Khajuraho in Madhya Pradesh (900-1050 AD); Limbojimata temple at Delmel, Mehsana (10th Century AD); Kupgallu Hill, Bellary, Madras; and Nilkantha temple at Sunak near Baroda to name a few.
These and many other figures are taken as cult figures in which rituals related to Kanya and Kumari worship for progeny gained deep roots in early century A.D. Even the very concept of ‘Lingam’ of the God Shiva resting in the centre of the Yoni, is in a way representation of the act of creation, the union of Prakriti and Purusua. The ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss that can be experienced only by the spirit.
Art Today
Today Indian art is confidently coming of age. Every form of stylistic expression in the visual arts, from naturalism to abstract expressionism derives its power from the artist’s emotional connection to his perceptual reality. The Nude in contemporary art, a perennial art subject, considered to be the greatest challenges in art has still not lost its charm and focuses on how the human form has been re-interpreted by the emerging and influential artists today.
The paintbrush has become a powerful tool of expression as the pen is for some, and has thus occasionally come under the line of fire for having crossed the ‘Lakshman Rekha’ and for plunging into the forbidden, which is called ‘obscene’, ‘vulgar’, ‘depraving’, ‘prurient’ and ‘immoral’. No doubt this form of art is a reflection of a very alluring concept of beauty and there is certainly something more to it than pearly ‘flesh’ but what needs to be determined is which art falls under the latter category.
India has embraced different eras and civilizations which have given her a colour of mystery and transformed into her glorious past adapting various cultures and art forms. In the Mughal period too one may see murals and miniatures depicting mating couples. That has been the beauty of our land. Art and authority have never had a difficult relationship until recently.
In fact, art and artists used to be patronized by various kings and the elite class. It is very unfortunate that the works of many artists today who have tried to play around with nudity have come under scrutiny and have had to face the music which has definitely made the artists to think twice before exhibiting their work of art.
Therefore, looking at a piece of art from the painters’ perspective becomes very important especially in the context of nudes. What needs to be seen is that the work is not sensational for the sake of being so and hence needs to be understood before any objections are raised. The courts have been grappling with the problem of balancing the individuals’ right to speech and expression and the frontiers of exercising that right.
The aim has been to arrive at a decision that would protect the “quality of life” without making “closed mind” a principal feature of an open society or an unwilling recipient of information the arbiter to veto or restrict freedom of speech and expression.
Artistic Freedom and Obscenity
The Constitution of India, by virtue of Article 19 (1) (a), guarantees to its citizen the freedom of speech and expression. India is also a party to the International Covenant on Civil and Political Rights and therefore bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states:
a. Everyone shall have the right to hold opinions without interference.
b. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds regardless of frontiers, either orally, in writing or in print, in form of art, or through any other media of his choice.
Nevertheless, there is an inseparable connection between freedom of speech and the stability of the society. This freedom is subject to Sub-clause (2) of Article 19, which allows the State to impose restriction on the exercise of this freedom in the interest of public decency and morality. The relevant portion of the same has been reproduced below:
Article 19(1) (a):
All citizens shall have a right to freedom of speech and expression. …(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation of any existing law, or prevent the State from making any law, insofar as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.
A bare reading of the above shows that obscenity which is offensive to public decency and morality is outside the purview of the protection of free speech and expression, because the Article dealing with the right itself excludes it. Thus, any interpretation of ‘obscenity’ in the context of criminal offences must be in consonance with the constitutional guarantee of freedom of expression which freedom is not confined to the expression of ideas that are conventional or shared by the majority. Rather, it is most often ideas which question or challenge prevailing standards observed by the majority that face the greatest threat and require the greatest protection as was so observed in Ranjit Udeshi’s case (Ranjit Udeshi v. State of Maharashtra).
The Supreme Court in Gajanan Visheshwar Birjur v. Union of India , while dealing with an order of confiscation of books containing Marxist literature, referred to the supremacy of the fundamental right of freedom of speech and expression, and observed as under:
Before parting with this case, we must express our unhappiness with attempts at thought control in a democratic society like ours. Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression can never be a successful permanent policy.
Any surface serenity it creates is a false one. It will erupt one day. Our constitution permits a free trade, if we can use the expression, in ideas and ideologies. It guarantees freedom of thought and expression – the only limitation being a law in terms of Clause (2) of Article 19 of the Constitution. Thought control is alien to our constitutional scheme.
To the same effect are the observations of Robert Jackson, J. in American Communications Association v. Douds (1950) with reference to the US Constitution:
‘Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored’.
As was also pointed out by Mr. Justice Holmes in Abramson v. United States 250 U.S. 616:
The ultimate good desired is better reached by free trade in ideas-the best test of truth is the power of the thought to get itself accepted in the competition of the market.
Krishna Iyer, J., speaking for the Court in Raj Kapoor v. State , dealing with a pro bono publico prosecution against the producer, actors and others connected with a film called “Satyam, Shivam, Sundaram” on the ground of prurience, moral depravity and shocking erosion of public decency held that the censor certificate is a relevant material, important in its impact, though not infallible in its verdict and observed as under:
…Art, morals and law’s manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite because State-made strait-jacket is an inhibitive prescription for a free country unless enlightened society actively participates in the administration of justice to aesthetics. …The world’s greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konarks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and prescribe heterodoxies.
In T. Kannan v. Liberty Creations Ltd. (2007) the Madras High Court has said that there should be a substantial allowance for freedom thus leaving a vast area for creative art to interpret life and society with some of its foibles along with what is good. Art and literature include within themselves, a comprehensive view of social life and not only in its ideal form.
The Apex court in Ranjit Udeshi’s case (supra) while answering the question in affirmative as to whether the test as laid down of obscenity squares with the freedom of speech and expression guaranteed under our Constitution, or it needs to be modified and, if so, in what respects, pointed out as under:
…The laying down of the true test is not rendered any easier because art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross.
…The test which we evolve must obviously be of a general character but it must admit of a just application from case to case by indicating a line of demarcation not necessarily sharp but sufficiently distinct to distinguish between that which is obscene and that which is not.
…A balance should be maintained between freedom of speech and expression and public decency and morality but when the latter is substantially transgressed the former must give way.
The evolution of law in relation to the delicate balance between artistic freedom viz-a-viz the right of speech and expression while dealing with the question of obscenity requires certain important norms to be kept in mind.
Reference
Maqbul Fida Hussain v. Rajkumar Pandey (2008)