From the dawn of civilization, India has been home to a variety of faiths and philosophies, all of which have co-existed harmoniously. The then Chief Justice S.R. Das in In Re: Kerala Education Bill 1957 AIR 1958 SC 956 speaking of the Indian tradition of tolerance observed as under:
…Throughout the ages endless inundations of men of diverse creeds, cultures and races – Aryans and non-Aryans, Dravidians and Chinese, Scythians, Huns, Pathans and Mughals – have come to this ancient land from distant regions and climes. India has welcomed them all. They have met and gathered, given and taken and got mingled, merged and lost in one body. India’s tradition has thus been epitomised in the following noble lines:
None shall be turned away From the shore of this vast sea of humanity That is India.
Consensus and accommodation have formed a significant and integral part of Indian culture and cornerstone of our constitutional democracy. In the context of obscenity, community mores and standards have played a very significant role in the past with the Indian courts. Indian art has always celebrated the female form. There is nothing salacious about it. Gloria Stienem, a feminist scholar and writer, once made a salient point about the problem behind obscenity:
Sex is the tabasco sauce that an adolescent national pallet sprinkles on every dish on the menu. We have been called as the land of the Kama Sutra then why is it that in the land of the Kama Sutra, we shy away from its very name? Beauty lies in the eyes of the beholder and so does obscenity. It is our perception to objects, thoughts and situations, which rule the mind to perceive them in the way we do.
Way back then, perhaps it would not be wrong to assume that the people led exotic lives dedicated to sensuality in all its forms. It was healthy and artistic. They studied sex, practiced sex, shared techniques with friends, and passed on their secrets to the next generation. All in good spirit. Sexual pleasure was not behind closed doors or a taboo; it was in the air in different forms. There was painting, sculpture, poetry, dance and many more. Sex was embraced as an integral part of a full and complete life.
It is most unfortunate that India’s new ‘puritanism’ is being carried out in the name of cultural purity and a host of ignorant people are vandalizing art and pushing us towards a pre-renaissance era.
We are at such a juncture where for the purposes of introspection, for looking both inwards and outwards, there is a lot to be learnt from the past and the same to be implemented in the future. India is one such pluralist society which acts a model of unity in the mosaic of diversities and has taught the world the lesson of tolerance by giving shelter to the persecuted and refugees of all religions and all nations. The standards of the contemporary society in India are fast changing and therefore, now in this age of modernization, we should more so embrace different thinking and different thoughts and ideas with open arms.
But while an artist should have his creative freedom, he is not free to do anything he wants. The line which needs to be drawn is between the art as an expression of beauty and art as an expression of an ill mind intoxicated with a vulgar manifestation of counter-culture where the latter needs to be kept way from a civilian society.
Plato once asked, “What do men organise themselves into the society for?” and answered, “To give the members of the society, all the members, the best chance of realizing their best selves”. This is the very purpose of social organisation. All human beings incomplete in themselves seek their ordainment of fulfilllment and destiny in the enriching human company and democracy provides the richest and the most profound opportunities of that mutual enrichment.
Democracy has wider moral implications than mere majoritarianism. A crude view of democracy gives a distorted picture. A real democracy is one in which the exercise of the power of the many is conditional on respect for the rights of the few. Pluralism is the soul of democracy. The right to dissent is the hallmark of a democracy.
In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.
Human personality can bloom fully and humanism can take deep roots and have its efflorescence only in a climate where all display an attitude of tolerance and a spirit of moderation. Our Greatest problem today is fundamentalism which is the triumph of the letter over the spirit. In a free democratic society tolerance is vital especially in large and complex societies comprising people with varied beliefs and interests. An intolerant society does not brook dissent. An authoritarian regime cannot tolerate expression of ideas which challenge doctrines and ideologies in the form of writings, plays, music or paintings.
Intolerance is utterly incompatible with democratic values. This attitude is totally antithetical to our Indian Psyche and tradition. It must be realised that intolerance has a chilling, inhibiting effect on freedom of thought and discussion. The consequence is that dissent dries up. And when that happens democracy loses its essence.
Our Constitution by way of Article 19(1) which provides for freedom of thought and expression underpins a free and harmonious society. It helps to cultivate the virtue of tolerance. It is said that the freedom of speech is the matrix, the indispensable condition of nearly every other form of freedom. It is the wellspring of civilization and without it liberty of thought would shrivel. Every time an artist portrays something different, something which is an unpopular view point, it may accompany discomfort and unpleasantness but that in itself cannot be a ground to curb the artistic freedom and quickly go on to label it as obscene.
There might be people who may actually get offended by those of Hussain’s paintings or others but the right course of action for them, is to simply shrug it off or protest peacefully. In my considered view, criticism of art may be there. Rather, there are many other more appropriate avenues and fora for expression of differences of opinion within a civil society. But criminal Justice system ought not to be invoked as a convenient recourse to ventilate any and all objections to an artistic work. It should not be used as a mere tool in the hands of unscrupulous masters which in the process can cause serious violations of the rights of the people especially taking into consideration the people in the creative fields. Such a pernicious trend represents a growing intolerance and divisiveness within the society which pose a threat to the democratic fabric of our nation.
Reference
Article is an excerpt from the judgment of Sanjay Kishan Kaun in the case of Maqbool Fida Hussain v. Raj Kumar Pandey (2003)