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Shahshi Tharoor: Indians concerned about freedom of expression should applaud the judgement by Justice Kaul

by, 3 September 2008

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The Times of India, 25 May 2008

Nudity isn’t obscenity, it’s just art

Shashi Tharoor

It is not often that an individual judge in our country wins the plaudits of the artistic and creative community. But that is what Justice Sanjay
Kishan Kaul of the Delhi High Court has just done. His landmark judgement of May 8, upholding a number of petitions submitted by the great Indian painter Maqbool Fida (M F) Husain, not only ensures that justice has been done to an authentic national icon, but contains observations that are both refreshing and true about the role of art in our society — observations which i hope will guide our national discourse on this vexed subject in the future.

Readers of my earlier columns on the subject will recall the outrage i had expressed about the harassment of the 92-year-old Indian artist by malicious lawsuits seeking his prosecution for allegedly having offended the petitioners’ notions of morality by the use of nudity in his art, particularly in paintings of Hindu goddesses and in the depiction of the contours of India in the shape of a nude female figure. The piling up of a number of cases — motivated essentially by anti-Muslim bigotry — had driven Husain into self-imposed exile in Dubai and London and deprived India of a national treasure. Justice Kaul’s judgement has now disposed of several of these cases in a learned, closely-argued and meticulously-footnoted ruling that bears detailed reading and extensive citation.

Justice Kaul begins by quoting Pablo Picasso: "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." Recalling the richness of India’s 5000-year-old culture, the judge adds, "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 (the) Mithuna’ image or the erotic couples in Bhubaneshwar, 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 (are examples of this)... Even the very concept of (the) ’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."

The judge goes on: "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." Describing the nude as a "perennial art subject", the judge observed that some paintings have been called ’obscene’, ’vulgar’, ’depraving’, ’prurient’ and ’immoral’ — but it was important to look at art from the artist’s perspective. As a judge he had to balance "the individual’s right to speech and expression and the frontiers of exercising that right" — to prevent a "closed mind" becoming "a principal feature of (our) open society" or "an unwilling recipient of information" from enjoying a veto over others’ rights to the same information.

But despite his appreciation of India’s artistic traditions, the learned judge could only, of course, base himself on the legal aspects of the
case. He reviews precedents and judgements from the US, UK, Australia and Canada before examining Indian case law (it is striking, by the way, that the law of obscenity in India dates back to Section 292 of the Indian Penal Code of 1860). Under Article 19 (2) of our Constitution, the judge observes, "obscenity which is offensive to public decency and morality is outside the purview of the protection of free speech and expression... but the former must never come in the way of the latter and should not substantially transgress the latter." How does one determine standards of public decency? Justice Kaul is clear: "The test for judging a work should be that of an ordinary man of commonsense and prudence and not an out of the ordinary or hypersensitive man". Obscenity, he opines, "is treating with sex in a manner appealing to the carnal side of human nature or having that tendency." In legal terms, as opposed to dictionary definitions, of obscenity, something which merely offends, repels or disgusts someone but does not tend to deprave or corrupt him or her cannot therefore be said to be obscene.

That is the standard which Justice Kaul has applied to the petitions before him. Husain’s paintings are hardly intended to provoke lustful thoughts; in fact, the judge notes, as an artist he "actually celebrates nudity and considers it as the purest form of expression". In the case of his painting of "Bharat Mata", which had offended several petitioners, the judge ruled that "the aesthetic touch to the painting dwarfs the so called obscenity in the form of nudity and renders it so picayune and insignificant that the nudity in the painting can easily be overlooked". The complainants who had objected to the painting being available on a website could always choose not to look at it, the judge said, adding tartly, "It seems that the complainants are not the types who would go to art galleries or have an interest in contemporary art, because if they did, they would know that there are many other artists who embrace nudity as part of their contemporary art."

"Art and authority have never had a difficult relationship until recently," the judge observes in his ruling. His judgement goes a long way towards reconciling the two. He also raises larger questions, vital for our free society, to which i will return next week.

The Times of India, 1 June 2008

Be more tolerant towards creative fields

Last week i wrote about the landmark judgement by Justice Sanjay Kishan Kaul of the Delhi High Court on May 8, upholding a number of petitions
submitted by painter M F Husain. The nonagenarian artist had sought the dismissal of various cases filed against him for allegedly offending public decency and morality by his "obscene" use of nudity in his paintings, particularly those of Hindu goddesses and of "Bharat Mata". While the judge’s ruling had taken care of the legal aspects of the case, his larger observations on the case deserve the attention of every thinking Indian.

The most important of these, i believe, is his rejection of the tendency of thin-skinned (or maliciously motivated) people across the country to claim to be offended by artistic and literary works. If you’re easily offended, he argues, don’t read the book, look at the painting or open the website that offends you, but don’t prevent the artist or writer from enjoying his constitutionally protected freedom of expression. What is vital, according to Justice Kaul, is to look at the work of art from the artist’s point of view — his or her intent rather than the hyper-sensitive viewer’s reaction. Lest he be promptly denounced by the Hindutva brigade as a deracinated pseudo-secularist, the judge wisely cites Swami Vivekananda’s words in defence of his approach: "We tend to reduce everyone else to the limits of our own mental universe and begin privileging our own ethics, morality, sense of duty and even our sense of utility. All religious conflicts arose from this propensity to judge others. If we indeed must judge at all, then it must be ’according to his own ideal, and not by that of anyone else’. It is important, therefore, to learn to look at the duty of others through their own eyes and never judge the customs and observances of others through the prism of our own standards."

But Justice Kaul goes even further in extending the boundaries of the permissible in India. Nudity and sex, he argues, have an honoured place in art and literature: "In the land of the Kama Sutra, we shy away from its very name?" he asks in surprise. "Beauty lies in the eyes of the beholder and so does obscenity.... (In Indian tradition) 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 vandalising art and pushing us towards a pre-Renaissance era."

This is wonderful language in a High Court judgement. Readers should remember that India, unlike the US, has no absolute right to freedom of expression; in our country, Article 19 (2) says that freedom of speech can be curbed by "reasonable restrictions... 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." In other words, a differently-minded judge could have easily interpreted the language about public order, decency and morality more narrowly. We Indians are fortunate that a series of judgements over the years, culminating in this one, have tilted the balance decisively in favour of our freedoms.

Justice Kaul is sensitive to the charge that liberal attitudes to art and obscenity reflect the inclinations of a privileged minority and that most Indians might indeed be offended by the kind of art his judgement protects. He writes: "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... 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."

These words should give heart not just to M F Husain, but to artists and writers across the country, who in recent years have found themselves the victims of other people’s hyper-sensitivities. "Intolerance," Justice Kaul writes, "is utterly incompatible with democratic values. This attitude is totally antithetical to our Indian psyche and tradition." He goes on to warn that the criminal justice system "ought not to be invoked as a convenient recourse to ventilate any and all objections to an artistic work" and be used as a "tool" in unscrupulous hands to violate the rights of artists. The judge declares that "a magistrate must scrutinise each case in order to prevent vexatious and frivolous cases from being filed and make sure that it is not used as a tool to harass the accused, which will amount to gross abuse of the process of the court.... (A)part from the harassment element there would be growing fear and curtailment of the right of the free expression in such creative persons." He decries "the large number of incidents of such complaints .... resulting in artists and other creative persons being made to run across the length and breadth of the country to defend themselves against criminal proceedings initiated by oversensitive or motivated persons, including for publicity."

Let us hope his words are heeded and that the remaining cases against Husain — there are still three pending — will also soon be withdrawn. In the meantime, Justice Kaul’s ruling is a remarkable charter for artistic freedom in India. "I have penned this judgment," he concludes, "with the fervent hope that it is a prologue to a broader thinking and greater tolerance for the creative field." Every thinking Indian concerned about freedom of expression should join in the applause.