Artistic Freedom-MFHussain Debate

Artistic Freedom / M. F.
Hussain Debate Excerpted From VOXINDICA

Contents Title 1. 2. 3. 4. Page No
M. F. Hussain - Secular Holy Cow or Market-Driven Peddler 2 Deccan Chronicle Apologises Hussain Doesnt 11 Obiter Dicta on Artistic Freedom & Social Responsibility 14 Artistic Freedom & Social Responsibility 28
Wednesday, November 04, 2009
M. F. Hussain Secular Holy Cow or Market-driven Peddler?

ART IS BIG BUSINESS The organisers of India Art Summit 2008 decided to exclude MFHs paintings from the displays for fear of protests byHindu organisations. Even in the 2009 summit MFHs paintings were officially excluded. The exhibition was conducted between August 22 & 24 last year at Pragati Maidan in New Dlehi. After this SAHMAT (Safdar Hashmi Memorial Trust) went ahead and conducted its own exhibition of MFHs paintings. Some Hindu organisations did protest and reproductions of some paintings were reportedly damaged. The secular brigade was up in arms against the government for not being able to protect an international art exhibition. For the left-wing (euphemism for communist-backed, anti-Hindu) SAHMAT it is routine to mark its protest against activities of Hindu organisations. However, the narrative is not as simple or innocent as it seems. For the organisers of India Art Summit, the stakes are high, for art is big business. Art pieces are high value currency in the world of billionaires. Art, art valuations, restoration of antique art pieces, forgeries, espionage and intrigues - all comprise a multi-billion dollar industry. Hammer MS & L, the organisers of the India Art Summit, say media reports, estimated the Indian Art market to be of the order of Rs 1500 crore in 2008 and growing at a phenomenal 35% year on year. Also according to these reports Phillip Hoffmen who owns sixteen art funds across the world averred that twenty billionaires - with deep pockets and willing to splash $ 100 million (Rs 450 crore) each - were prowling the world art markets. A possible disruption of high commerce might have forced the organisers of the art summit to exclude MFHs paintings. Could the same market forces be driving the media frenzy in the subject? MEDIA DEBATES There have been debates in Indian news channels on the eve of M. F. Hussains ninety-fourth birth day and after news about Indian governments efforts to bring back M. F. Hussain from a self-imposed exile in Dubai was reported. Ostensibly the
VOXINDICA Artistic Freedom/M. F. Hussain Debate 2
debates were to discuss about freedom of expression, government's inactivity to intervene to protect the organisers in holding the India Art Summit and MFHs court cases. That the media debates were purely one-sided needs no mention. Chandan Mitra on NDTV and Praful Goradia on Times Now, presumably invited to voice the Hindu view point were not allowed to get in a word edgewise. They were there merely for form. Akhil Sibal, M. F. Hussains high profile lawyer had the run of the debates on all the channels. Looking suitably modest for a victor in two courts and a heart bleeding for the cause of freedom of expression, he wallowed with pity for a civil society that has not been standing up for freedom of expression - for his client. Poornima Sethi, who represented one of the petitioners in the Delhi High Court, or Vinayak Dixit, Nishant Katneshwarkar, Sunil Kumar Verma advocates who argued the case in the Supreme Court were conspicuous by their absence! If they were invited, their presence or participation if indeed they were allowed to participate - would have complicated the debate/s. In another debate, Seshadri Chari was roundly snubbed by Anjolie Ela Menon who refused to even consider his view point. A while ago, Menon announced her secular credentials, when in a Letter to the Editor of Outlook obviously celebrities too write letters to the editors - she took umbrage against the former CEC, Gopalaswamy for wearing the thirunamam on his forehead, but that is another matter. For her, Hussain was doing along fine in Dubai enjoying himself with fast cars, chaperoned by fast girls (the channel showed a clipping) and is not very keen to come back. A pearl of wisdom she dropped for the benefit of viewers was that Hindu gods and goddesses were never clothed till Raja Ravi Varma came along and clothed them! All those descriptions in scriptures, of gods and goddesses wearing silken robes and ornaments studded with precious stones were made up by the twenty-first century Internet Hindutva brigade the new foil for the Sangh Parivar in the lexicon of leftliberal intelligentsia! The debates on the issue, in general, were replete with half-truths and untruths freely bandied about and to use Richard Nixons famous quote, fairly economised with the truth! FREQUENTLY RAISED ISSUES I: The paintings are not viewed by many. In fact they are for the delectation of a minuscule minority who have a taste for them. Why should the majority object to them?
VOXINDICA
Artistic Freedom/M. F. Hussain Debate
Fact: The test of minuscule-minority consumption could equally be applied to recreational drugs. Should we legalise them? I: There are erotic sculptures in Hindu temples. Why should people object to erotic art? Fact: Only a handful of temples out of the millions that exist in the country contain erotic art. The Hindus do not worship these sculptures but they do Durga, Saraswathi and Sita, the subjects of Hussains nude paintings. The antecedents of erotic bas-reliefs in temple architecture are social and not religious. I: A group of eminent persons nominated MFH for an award of the Bharat Ratna. Fact: They seem to have done this more to express their solidarity with MFH under attack from the aggrieved Hindusthan with any serious intent. Would they or other champions of freedom of expression like SAHMAT - be willing to nominate Dan Brown or Tasleema Nasrin for a Sahitya Akademy award or the Danish cartoonist for a similar honour? For the record, this article does not support either the American novelist or the Bangladeshi writer or the Danish cartoonist inasmuch as they hurt the religious sentiments of Christians or Muslims. I: MFH has not painted any Hindu gods or goddess - in the nude in the last thirty or forty years. The current imbroglio is because of purely political reasons and nothing else. Fact: The information super highway, popularly known as the internet is less than fifteen years old, at least in India. MFHs paintings were displayed on his website, http://www.mfhussain.com/, which is currently not accessible, presumably because it has been withdrawn. Quite a few who are aghast at MFHs paintings were able to reproduce them on other websites, to show how offensive they were. If one were to pose a hypothetical question, if someone committed a heinous crime thirty or forty years ago which has come to light only now, should he be exonerated on the score of the crimes antiquity? Fact: MFH did a painting for Deccan Chronicle which the paper published on March 8, 2009 on the occasion of the International Womens Day. The painting was entitled Shakti. In order to remove any doubt that the woman in the painting was of an urban professional by name Shakti - but of the goddess Shakti - the woman was shown standing astride a tiger. However, this time Hussain deigned to clothe the goddess in a tee-shirt, jeans and shoes, probably as a concession to the Internet Hindutva brigade!
I: MFH considers nudity as the purest form of expression. Fact: Does it mean MFH does not find purity anywhere else except in Hindu gods and goddesses. I: The Supreme Court of India heard and dismissed criminal cases against MFH. As the SC is the court of last resort in India everyone should respect its judgement and let the matter rest. Fact: The SC has pronounced its judgement in an appeal against 'a' Delhi High Court judgement. The DHC judgement pertains to several criminal cases transferred to it by the SC and not against MFHs paintings in general (see below). According to the SC record (accessible from the internet), the apex court Heard and dismissed the Special Leave to Appeal (Crl) No(s).6287/2008 on September 8, 2008. Any thing else reported in the media is an obiter dictum, (dicta in plural), an opinion voiced by a judge that has only incidental bearing on the case in question and is therefore not binding. The following observations of the CJI were obiter dicta: There are so many such subjects, photographs and publications. Will you file cases against all of them? and It (Husains work) is art. If you dont want to see it, then dont see it. There are so many such art forms in the (Hindu) temple structures. The secular media latched on to theseobiter dicta and widely publicised them. [The DHC judgement, while summing up the status of obscenity laws in various countries explains Section 292 of the Indian Penal Code (1860) and lists certain exceptions to its applicability. One of these relates to any representation sculptured, engraved, painted or otherwise represented on or in - (i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act,1958 (24 of 58), or (ii) any temple, or any car used for the conveyance of idols, or kept or used for any religious purpose.] If a statute contains certain exceptions, does it not follow that the exceptions could not be or should not be used as precedents in defence of alleged violations of the selfsame law? Were not these very same erotic representations in engraved sculptures in ancient monuments, archaeological sites and remains - which are listed as exceptions in the statute - used as the principal alibi for defending the nude paintings of gods and goddesses? The supreme irony of the situation seems to have been lost on all stakeholders in the dispute! Another instance of obiter dictum is Justice Markandeya Katjus observation, Talibanisation of the country cannot be permitted in the recent case of Md. Salim a
class X student vs. Nirmala Convent School (in Madhya Pradesh's Vidisha district). Md. Salim was rusticated by the school for refusing to remove his beard. He approached the HC and then the SC both of which dismissed his case. On a revision petition, the judge apologised for his obiter dictum and excused himself from the case. The revision petition was heard by another bench which ruled in Md. Salims favour. I: The Delhi High Court exonerated MFH of all culpability in all the criminal cases filed against him. I: While dismissing the criminal cases, Justice Sanjay Kishan Kaul of the DHC observed, A painter at 90 deserves to be in his home painting his canvass! Fact: On a petition by MFH the SC transferred cases in various courts (Pandharpur, Maharashtra; Rajkot, Gujarat; Indore and Bhopal, Madhya Pradesh) to the DHC to be heard together. Many complainants of the original cases were not able to appear before the DHC. This is probably because the complainants in remote locations can not afford to engage high profile lawyers who charge by the clock to fight cases in far away Delhi. For the wealthy MFH there were no such constraints and he was able to engage a battery of the best lawyers in Delhi. Fact: The secular media picked up the last sentence of the 130-paragraph, 29-page judgement and went to town with it, as if the rest did not matter. The following observations of the Honourable Justice were airbrushed: "In my considered view, the alleged past misconduct of the petitioner cannot have any bearing on the present case because there has been nothing which has come on record to prove the converse. "It is made clear that the paintings depicting Hindu Gods / Goddesses in nude by the petitioner do not form a subject matter of the present case and as such the learned counsels have been unable to bring to the notice of this court any cases/complaints pending or decided in this regard to go against the petitioner. "The persons who may feel aggrieved by those set of paintings have an appropriate remedy in law to get their rights redressed. "Hence, commenting on those paintings would be prejudging the said paintings and passing a verdict on the same thus prejudicing the rights of the accused/petitioner. (Para 103) I: On what grounds could the DHC judgement be faulted or termed flawed? Fact: The following sources the learned judge used as reference points for drafting the judgement are indicative of acertain ideological perspective.
1. Excerpted from Hindutva: Exploring the Idea of Hindu Nationalism, Jyotirmaya Sharma, Penguin Books India, Viking, accessible from: http://www.hinduonnet.com/lr/2003/12/07/stories/2003120700100100.htm. 2. Love and Lust - An anthology of Erotic Literature from Ancient and Medieval India; Pavan K. Verma Sandhya Mulchandani; Harper Collins Publishers. 2004. 3. Prudes take charge in India, The Independent (London), Jun 7, 1998; Peter Popham accessible from: http://findarticles.com/p/articles/mi_qn4158/is_19980607pnum=2andopg=n14161393 . The Hindu of Madras and The Independent of London are known to be staunchly leftleaning. In many instances, The Hindu refused to entertain alternative view points even in its Letters to the Editor columns. As for Pavan K. Verma, it is a well known fact that in India it is difficult for any except the left-leaning authors to be published. Fact: Seventeen of the twenty sources cited by the learned judge are from internet sources. Therefore the omission of the following pertaining to a case which is an exact parallel to the instant case was surprising: 1. Freedom of religion and other beliefs. (1994). Otto-Preminger-Institut v. Austria, (13470/87) [1994] ECHR 26 (20 September 1994). Accessible from: http://www.hrcr.org/safrica/religion/Otto.html 2. Otto Preminger Institute V Austria. (1994). Otto Preminger Institute v. Austria. ARTICLES: 10; 26. Accessible from: http://www.mediator.online.bg/eng/ottopr_e.htm Fact: The DHC judgement seems to have largely relied on the following internet source Freedom of Art under seige In India. Pallabi from:http://www.legalserviceindia.com/articles/re_ind.htm. Ghosal, accessible
The typo in siege is as in the website. The article was written by Pallabi Ghosal - 4th year NLIU, Bhopal, presumably a fourth year law student of NLIU, Bhopal at the time. The quote from Pablo Picasso, the references to Shiva Linga asPrakruti and Purusha, erotic representations in temple architecture, and some of the cases cited in the judgement - are from this article. Fact: The DHC judgement explains at length Article 19 of the Constitution of India which provides for freedom of expression. Clause (2) of the article
VOXINDICA
allows the State to impose restriction on the exercise of this freedom in the interest of public decency and morality. The judgment comments on this: 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. (Para 46 & 47) Obscenity without a preponderating social purpose or profit cannot have the Constitutional protection of free speech or expression. Obscenity is treating with sex in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency. (Para 67) It is difficult to reconcile these observations with the conclusion of the judgement. For instance, how could one conclude that the paintings in question do not offend public decency and morality; they achieve the preponderating social purpose or profit and do not appeal to the carnal side of human nature or having that tendency? And why was the following plea of the respondents brushed aside? The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life preservation of public order and rule of law (Para 83) EPILOGUE In August 2009, Yale University Press in the US published a scholarly work entitled, The Cartoons that Shook the World by Professor Jytte Klausen. In spite of protests from Yale alumni and the American Association of University Professors, the publishers of the book felt obliged to expunge reproductions of the cartoons along with all other images of Prophet Muhammad. Nearer home, the Indian government did its best to scuttle the production of the movie, Indian Summer based on the historical work, Indian Summer: The Secret History of the End of an Empire. This was because the portrayal of the well documented Nehru-Edwina romance would hurt the personal sentiments of one family. In the case of YUP, it was pragmatism that drove it to expunge objectionable material. In the case of the Indian government it was sycophancy that drove it to placate to the ego-centrism of a family. Should not the sentiments of a billion Hindus count in the debate on freedom of
expression? The debate in general does not seem to have addressed some fundamental questions: Is artistic freedom absolute? Or, are there no limitations to artistic freedom? Could a painter express his adoration for the highest form of purity by painting a living being - a celebrity for instance? Or, does an artists expression for the highest form of purity applies only to Hindu gods and goddesses? What about the freedom of expression of those who are offended by MFHs paintings? Do they or do they not have the freedom to practice their religion with dignity? Further Reading: Artistic Freedom & Social Responsibility, accessible from:
http://voxindica.blogspot.com/2007/06/artistic-freedom-social-responsibility.html Deccan Chronicle Apologises Hussain Doesn't! accessible from:
http://voxindica.blogspot.com/2009/04/oscar-awards-ceremony-this-year-was.html Obiter Dicta on Artistic Freedom & Social Responsibility, accessible from: http://voxindica.blogspot.com/2008/09/did-delhi-high-court-grant-m-fhussein_13.html
VOXINDICA
Saturday, April 11, 2009
Deccan Chronicle Apologises - Hussain Doesn't!

There is a quaint mix of irony in the features that Deccan Chronicle front-paged on February, 24 and March 8 this year and their sequels. And the contrast couldnt be as stark. The occasions were, in the first instance, a British film and anIndian music director winning the American Oscars this year and in the second the celebration of the international womens day. In the sequels the paper apologised to two communities with a degree of variance. The artist who played a prominent role in staging the two features cocked a snook - again - at one of the communities. The Oscar awards ceremony this year was a grand event for the Indian media. Ever since the count down for the awards began, nothing else mattered for it. That the Indian nominee for the awards was actually a British film produced and directed by a Briton escaped everybodys attention. That for the Western world if India graduated out of sadhus and snake-charmers it should have slums, drugs, prostitution, sex and sleaze escaped everybodys attention. The Western world forgets that many cities around the world have as much poverty, squalor and crime in them as in Mumbai. Just as an example of how the best and the worst coexist anywhere in the world and not necessarily only in India consider this: It was a city of contrasts and contradictions, of promises made and promises unfulfilled. New York was the heart of the capitalist society, a symbol of unsurpassed wealth; yet it was also so broke it could barely meet the interest payment on its debts. New York contained the finest medical facilities in the world; yet every day people who couldnt afford them died from lack of care, and the infant mortality rate in the South Bronx was higher than it was in the bustees of Calcutta. New York possessed a city university whose student body was larger than the population of many cities, yet one person in eight in New York couldnt speak English and her schools produced a regular flow of barely literate young adults. As the Pharaohs of Egypt, the Greeks of Antiquity, the Parisians of the Napoleonic era had set the architectural standards of their times, so the New Yorkers of the age of glass and steel had stamped the seal of their architectural genius on the urban skyline of the world. Yet a quarter of all the buildings in the city were sub-standard and beyond the glittering magnificence of Lower Manhattan, Park and Sixth Avenue loomed the wastelands of the South Bronx, Brownsville and Bedford Stuyvesant. Yet, in the midst of all material affluence, an eighth of the population of
New York lived on welfare. Half the nations drug addicts crowded her streets. Her police precincts recorded a theft every three minutes, a hold-up every twelve, four rapes and two murders a day. More prostitutes circulated through her streets than in the avenues of Paris. (Collins, Larry and Lapierre, Dominque, 1981, The Fifth Horseman, Vikas Publishing House, New Delhi, pp. 136-7) This description by the authors of The City of Joy could fit any city - Baghdad or Buenos Aires, Dubai or London, Moscow or New York , Riyadh or Tokyo, If themes based on poverty, squalor and crime were the criteria for awarding Oscars, then movies made on poverty, squalor and crime in these cities should qualify as much as Slumdog Millionaire. All that mattered for the collective Indian psyche - steeped in a feeling of inadequacy and incorrigible inferiority complex - was to keep up with the Joneses. If indeed collective Indian psyche is represented by the media ballyhoo is a moot point. Yes we too won an Oscar! Of course if an avant-garde film maker like Satyajit Ray gloated over an Oscar on his death bed, ordinary mortals should be excused for celebrating it. On February 22 the awards were announced with the British film - Slumdog Millionaire - bagging a majority of them including two for its Indian music director. On February 24, the Deccan Chronicle of Hyderabad had two prominent features: its first lead in large type described the Indian music director as top dog. The phrase, top dog is American slang for One considered to have the dominant position or highest authority, especially as a result of a competitive victory according to 'The American Heritage Dictionary of the English Language'(Fourth Edition 2000, Updated 2003, Houghton Mifflin Company). According to 'The Collins Essential English Dictionary' (2nd Edition 2006, Harper Collins Publishers 2004, 2006) it is a noun, informal, meaning the leader or chief of a group. In any case the subeditor who captioned the article must have felt that he had done a clever job by packing a lot of meaning into four words. The paper must have realized the faux pas of attaching the phrase to the name of a member of a particular community, after the days edition hit the stands - and hit the panic button. It needed no warning about the communitys reactions; they are all too known and would have resulted in a serious law and order problem in the city. The paper promptly apologized to the community. The apology was not only instantly displayed on its online edition but local news channels were alerted to it so that they could scroll it on their screens. And they did it throughout the day. The apology was published in the next days edition prominently displaying it on the first page. Nothing exceptionable in any of this. The paper did the right thing for however inadvertently hurting the feelings of the community.
The second feature of the newspaper that day was an exclusive painting the paper commissioned to celebrate the occasion. It was by M. F. Hussain who has not so far done the decent thing the paper did - apologizing for his sacrilegious paintings of Hindu gods and goddesses. In the painting the woman in the Statue of Liberty was disrobed but cloaked in a strapless gown. Liberal-minded Americans might not mind it. The story does not end there. The inveterate feminist in M. F. Hussain - for whom purity and nudity are synonymous - paid tributes to the Indian Woman in another set of paintings commissioned by the newspaper to celebrate the international womens day, March 8. The paper had a Hussain painting on page 8 to go with the article One Step Forward, Two Steps Back? In it one can see the back of a dancing diva. We need not however, begrudge Hussain his Freudian trip with the pretty heroine - for the back of the woman in the painting was sparsely covered (piche choli kaisa hai?) and a small elephant (gajagamini) was seen at the bottom of it. The painting on page 1 depicts Shakti. In order to remove any doubt about the possibility of the woman in the painting being an urban Indian woman professional by name Shakti she was shown standing astride a tiger. The woman in the painting is Goddess Shakti! However, this time Hussain deigned to clothe the goddess - in a tee-shirt, jeans and shoes. By now we are inured to Hussains misdemeanours with the media blaming any protest against them as originating from a particular ideological perspective and the judiciary trying to exhibit its liberal streak or bowing to the left-liberal intellectuals shouting hoarse about freedom of expression being in peril and dismissing them. However there must have been some feeble protests for clothing the goddess Shakti in a tee-shirt, jeans and shoes. The paper did apologise for Hussains - not its - faux pas. However the similarity ends there. The apology came several days later, not instantly as on the previous occasion and tucked in an inside page, not prominently displayed on the front page as on the previous occasion. Deccan Chronicle apologises to Muslims and Hindus with a degree of variance. Hussain cocks a snook at Hindus again!
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Saturday, September 13, 2008
Obiter Dicta on Artistic Freedom and Social Responsibility

This is a sequel to the article "Artistic Freedom & Social Responsibility", which examined the question as to what happens when the artistic freedom of an individual (or a famous painter) militates against the collective human rights of a multitude. This article raises certain pertinent questions about the observations of Indian courts which have been generally liberal in preserving individual freedoms vis--vis the rights of the majority religion. Could the defenders of artistic freedom, have inveigled the courts into delivering illconceived judgements by speciously citing mischievous evidence? In the process were the courts oblivious to pertinent alternative views on the matter? DID THE DELHI HIGH COURT GRANT M. F. HUSSAIN AMNESTY? Did Justice Sanjay Kishan Kaul of the Dlehi High Court grant amnesty for all of M. F. Hussains paintings on May 8, 2008? If you watched English news channels on May 8 or read English newspapers the next day or read references to the judgement in articles / columns since, you should be excused for concluding that Justice Kaul did so. Let us examine the facts. The judge restricts himself to the instant case and categorically states that in his ...considered view, the alleged past misconduct of the petitioner cannot have any bearing on the present case ... It is made clear that the paintings depicting Hindu Gods/ Goddesses in nude by the petitioner do not form a subject matter of the present case ... The persons who may feel aggrieved by those set of paintings have an appropriate remedy in law to get their rights redressed. Hence, commenting on those paintings would be prejudging the said paintings and passing a verdict on the same thus prejudicing the rights of the accused / petitioner. (Para 103) The last sentence in Justice Kauls verdict (in the criminal revision petition No. 114 / 2007 of the Delhi High Court) came as manna from heaven for the secularists. Justice Kaul ended his 29-page judgement with the remark: A painter at 90 deserves to be in his home painting his canvass! The following observation of the judge must have made their day for them, for was it not one of the arguments the left-liberal intellectuals proffered in support of Hussain all along? 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. (Para 107) In the instant case, firstly, the judge allowed the criminal revision petition and dismissed summons and warrants issued against M.F. Hussain by the Additional Chief Metropolitan Magistrate, Delhi based on the plea of the petitioner (M.F. Hussain) that the said painting was sold to a private collector in the year 2004 and that the petitioner did not deal with the same in any manner whatsoever after saleSubsequently in the year 2006, the said painting entitled Bharat Mata was advertised as part of an on-line auction for charity for Kashmir earthquake victims organized by a non-governmental organization with which the petitioner claims to have no involvementthe petitioner at no point in time had given a title to the said painting (Para 5). Secondly, the judge discussed at length about the limits of artistic freedom and the applicability of allegations such as obscenity, prurience, pornography etc. within the meaning of the Obscene Publications Act or Sections 292, 294 and 298 of the IPC, and specifically sub-section (2) of Section 292, attributed to the painting that was the subject of the instant litigation. The judge delved deep into the question of 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. (Para 110) Thirdly, in view of a number of similar criminal complaints pending in various local courts the judge examined the applicability of jurisdiction of courts especially in cases where an artist like in the present case is not made to run from pillar to post facing proceedingsbalancing of interest between the person aggrieved and the accused so as to prevent harassment of artists, sculptors, authors, filmmakers etc. in different creative fields... (Para 129) THE CASE M.F Hussain approached the Supreme Court with a plea to consolidate criminal cases related to private complaints filed in lower courts in Bhopal and Indore (Madhya Pradesh), Pandharpur (Mahrastra) and Rajkot (Gujrat) against a nude painting allegedly of Bharat Mata. Accordingly the Supreme Court consolidated the cases and transferred them to the court of the Additional Chief Metropolitan Magistrate, Delhi, who issued summons to Hussain for a trial of various offences u/s 292 / 294 / 298 of
the IPC. Notices were also issued to the petitioners who filed the original petitions in various lower courts. Following this Hussain filed a revision petition in the Delhi High Court. Only one of the original petitioners sought to be heard in the proceedings in the Delhi High Court and was allowed to do so. This is understandable because not everyone who is pained by Hussains paintings is rich enough to fight litigation in far away Delhi nor can afford to retain high profile lawyers like Mr. Akhil Sibal to represent him. While hearing the revision petition, the Delhi High Court granted exemption from personal appearance to Hussain. The court was assisted by the Additional Solicitor General of India as amicus curie. In assaying the case the learned judge cited the works of various contemporary writers on art such as Love and Lust; An anthology of Erotic Literature from Ancient and Medieval India (2004, Pavan K. Verma and Sandhya Mulchandani; Harper Collins). The judge has also taken into consideration material available in certain telltale internet sources such as Freedom of art under siege in India by Pallabi Ghosal; (excerpts from) Hindutva: Exploring the Idea of Hindu Nationalism (Jyotirmaya Sharma, Penguin Books India, Viking) and Prudes take charge in India, The Independent, (Jun 7, 1998, London). The other sources relied upon by the judge to arrive at his conclusions are: Constitutional Underpinnings of a Concordial Society, The 21st Dr. Kailashnath Katju Memorial Annual Lecture by M.N. Venkatachaliah; Indian Democracy: Reality or Myth - We have pledges to fulfill, V.M. Tarkunde Memorial Lecture by Soli J Sorabjee, Former Attorney General of India and the proceedings in the case of Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and Ors. AIR1996SC1113. THE JUDGEMENT The learned judge traced the history of Indian art forms from the second century till date and vetted precedents of similar cases from the jurisprudence of Canada, Australia, India, the UK and the USA with a view to balancing the individuals right to speech and expression and the frontiers of exercising that right and 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 (Para 8) The judgement concedes that occasionally art ceases to be art and plunges into the forbidden, which is called obscene, vulgar, depraving, prurient, or immoral:
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.3 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 4 but what needs to be determined is which art falls under the latter category (Para 4) While the first amendment to the American constitution absolutely prohibits abridgement of the freedom of speech, US courts held that the test of obscenity had to be judged from the point of view of an average person and not the high priests of art / culture. obscenity is not within the area of constitutionally protected freedom of speech or pressThe Court further held that the rejection of obscenity was implicit in the First Amendment.The aspect of obscenity had to be judged from the point of view of an average person by applying contemporary community standards (Para 12) In Australia, there is no express right to free speech but only a limited implied guarantee of political discussion. The courts while answering the question in particular cases relating to visual art and obscenity as to whether the artwork offends contemporary community standardshave taken in consideration the following factors into account: the circumstances of the artwork's publicationthe target group of the publicationand whether or not the artwork has artistic merit.There is not, however, any absolute or partial defense of artistic merit. (Para 22) In the Indian context, Article 19 (1) provides the right to freedom of speech (which is the basis for artistic freedom) and clause (2) of the article places reasonable restrictions on the right: 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 ofthe 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. (Para 46) 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 (Para 47)
The cases of the famous movies Bandit Queen (vide Bobby Art International and Ors. v. Om Pal Singh Hoon and Ors. (1996) 4 SCC 1) and 'Schindler's List' were cited, quite appropriately, as may be relevant for the present matter humiliated, stripped naked, paraded, made to draw water from the well, within the circle of a hundred men. The exposure of her breasts and genitalia to those men is intended by those who strip her to demean her. The effect of so doing upon her could hardly been better conveyed than by explicitly showing the scene. The object of doing so was not to titillate the cinema-goer's lust but to arouse in him sympathy for the victim and disgust for the perpetrators. The revulsion was not at Phoolan Devi's nudity but at the sadism and heartlessness of those who had stripped her naked to rob her of every shred of dignity. Nakedness does not always arouse the baser instinctin 'Schindler's List', the scene depicting rows of naked women, shown frontally, being led into the gas chambers of a Nazi concentration camp. Not only are they about to die but they have been stripped in their last moments of the basic dignity of human beings. Tears are a likely reaction; pity, horror and a fellow feeling of shame are certain, except in the pervert who might be aroused. We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive. 'Bandit Queen' tells a powerful human story and to that story the scene of Phoolan Devi's enforced naked parade is central. It helps to explain why Phoolan Devi became what she did: rage and vendetta against the society that had heaped indignities upon her (Para 41) In dealing with matters of art and literature the Indian courts have been generally constrained or lenient in applying the law: The court in Sada Nand and Ors. v. State (Delhi Administration) ILR (1986) II Delhi 81 laid down the test to the affect that the pictures of a nude/semi- nude woman cannot per se be called obscene unless the same are suggestive of deprave mind and are designed to excite sexual passion in the persons who are likely to look at them or see them...However, a look at the impugned pictures was held to show beyond a shadow of doubt that they can hardly be said to have any aesthetic or artistic touch, rather they seem to have been taken with the sole purpose of attracting readers who may have a prurient mind. The women in nude had been just made to lie on a grassy plot or sit on some stool etc. and pose for a photograph in the nude. So they may well be said to be vulgar and indecent but all the same it may be difficult to term them obscene within the meaning of Section 292 IPC. (Para 40) The judgement cites Justice Krishna Iyer, in the famous `Satyam, Shivam, Sundaram', case (Raj Kapoor v. State AIR 1980 SC 258), dealing with a pro bono publico prosecution against the producer, actors and others: 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 (Para 50) However the Supreme Court felt that while dealing with litigation concerning matters of art it is necessary to maintain a delicate balance between freedom of speech and expression and upholding public decency and morality and that when public decency and morality are transgressed the transgressor forfeits the right to freedom of speech. More importantly in the delicate task of deciding what is artistic and what is obscene, the evidence of men of literature or others on the question of obscenity is not relevant. The Apex court in Ranjit Udeshis case 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...this Court held that the delicate task of deciding what is artistic and what is obscene has to be performed by courts and as a last resort by the Supreme Court and, therefore, the evidence of men of literature or others on the question of obscenity is not relevant (Para 54) Similarly, courts have held that public interest is the test to be applied for the application of the right to free speech: When there is propagation of ideas, opinions and information or public interests or profits, the interests of society may tilt the scales in favour of free speech and expression. Thus books on medical science with intimate illustrations and photographs though in a sense immodest, are not to be considered obscene, but the same illustrations and photographs collected in a book from without the medical text would certainly be considered to be obscene... (Para 66) Obscenity without a preponderating social purpose or profit cannot have the Constitutional protection of free speech or expression. Obscenity is treating with sex
in a manner appealing to the carnal side of human nature or having that tendency. Such a treating with sex is offensive to modesty and decency. (Para 61) However the instant case was judged based on certain technicalities in the applicability of the law namely Sections 292 / 294 / 298 of the IPC. The law mandates that for the offender to be eligible for punishment under these sections, the offence must have been committed in the presence / within sight of the complainant. As to the contention of the counsel for the respondents, ...The valuable and cherished right of freedom of expression and speech may at times have to be subjected to reasonable subordination to social interests, needs and necessities to preserve the very core of democratic life preservation of public order and rule of law (Para 84) that it is not the case that the impugned painting was put up for display in some art gallery or private exhibition, instead it was uploaded on his own website which could be accessed by any person and any common man who is a patriot would get affected by the said picture. Hence, the yardstick to determine whether the painting is obscene or not should be seen from the mindset of the society as a whole and not of a particular 'class' (Para 87) that when the petitioner can make the deliberate act of outraging the sentiments of his fellow nationals by drawing such painting at the fag end of his life then he might as well be punished for such act if so held guilty. Thus, the petitioner cannot take the advantage, excuse and defense of his old age (Para 89) The learned judge opined: At some such grave situation at least the decision as to the need and necessity to take prohibitory actions must be left to the discretion of those entrusted with the duty of maintaining law and order, and interposition of courts unless a concrete case of abuse or exercise of such sweeping powers for extraneous considerations by the authority concerned or that such authority was shown to act at the behest of those in power, and interference as a matter of course and as though adjudicating an appeal, will defeat the very purpose of legislation and legislative intent(Para 84) Though some might feel offended or disgusted at the very inception of seeing the alleged Mother India in nude but that by itself and nothing more in my opinion is not sufficient to qualify the test of obscenity. The said painting depicting India in a human form in no manner has that tendency to make an average person feel embarrassed by naked portrayal of a concept which has no particular face to it since the painting has not lost its artistic value / touch (Para 98)
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The learned judge pays a great tribute to Hinduism not only as one of the worlds oldest religious traditions but also as the most liberal tradition that transcends definition. This could probably be the reason why it can be easily offended with impunity! Hinduism being the worlds oldest religious tradition, incorporates all forms of belief and worship without necessitating the selection or elimination of any. The Hindu is inclined to revere the divine in every manifestation, whatever it may be, and is doctrinally tolerant. A Hindu may embrace a non-Hindu religion without ceasing to be Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange gods, and divergent doctrines as inadequate rather than wrong or objectionable, he tends to believe that the highest divine powers complement each other for the well-being of the world and mankind. The core of religion does not even depend on the existence or nonexistence of God or on whether there is one god or many. Since religious truth is said to transcend all verbal definition, it is not conceived in dogmatic terms. Hinduism is then both a civilization and a conglomerate of religions with neither a beginning, a founder, nor a central authority, hierarchy, or organization.7 (Para 104) The judgement selectively invokes Swami Vivekananda in defining the reason behind religious conflicts. The conundrum which has blocked the minds of a few today was given a riposte by Swami Vivekananda in the following words8: ...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 (Para 105) The plea for toleration, opposition to fundamentalism, the defense of free speech and the caveats for restrictions to free speech in the interest of public order are equally applicable to both sides of a disputed issue: Our Greatest problem today is fundamentalism which is the triumph of the letter over the spirit.14 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.15 (Para 115) 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.16 (Para 116) the criminal justice system 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 (Para 111) ALTERNATIVE VIEWS As eighteen of the twenty references cited in the judgement were from internet sources it is unfortunate that the following escaped the honourable courts attention: Freedom of religion and other beliefs. (1994). Otto-Preminger-Institut v. Austria, (13470/87) [1994] ECHR 26 (20 September 1994). www.hrcr.org/safrica/religion/Otto.html; Otto Preminger Institute V Austria. (1994). Otto Preminger Institute v. Austria. ARTICLES: 10; 26. www.mediator.online.bg/eng/ottopr_e.htm. These refer to a case very similar to that of Hussains. The case was adjudicated in the Innsbruck regional court and the Innsbruck Court of Appeal (the Austrian equivalents of our subordinate and high courts) and finally dealt with by the European Court of Human Rights (corresponding to an appeal in our Supreme Court). See Artistic Freedom and Social Responsibility also published in this blog, for a detailed analysis of the case. In the case of Otto Preminger Institute v. Austria, the Austrian Courts made interesting observations about artistic freedoms which flow as corollaries of the right to freedom of speech. The trial court observed that Artistic freedom cannot be unlimited. The limitations on artistic freedom are to be found, firstly, in other basic rights and freedoms guaranteed by the Constitution (such as the freedom of religion and conscience), secondly, in the need for an ordered form of human coexistence based on tolerance, and finally in flagrant and extreme violations of other interests protected by law...
The Innsbruck court of Appeal held that artistic freedom was, necessarily limited by the rights of others to freedom of religion; indignation was justified to attract penal provisions when offended.the religious feelings of an average person with normal religious sensitivity and that the whole derision of religious feeling outweighed any interest the general public might have And finally the 9-member commission of the European Court of Human Rights in its 63 judgement held that whoever exercises the rights and freedoms [enshrined in the first paragraph of that Article (10)] undertakes "duties and responsibilities". Amongst them, in the context of religious opinions and beliefs, may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. This being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that any "formality", "condition", "restriction" or "penalty" imposed be proportionate to the legitimate aim pursued. The dissenting judges, while holding that the Article 43 of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) does not guarantee religious freedoms, nonetheless agreed that: it must be accepted that it may be "legitimate" for the purpose of [Article 10] to protect the religious feelings of certain members of society against criticism and abuse to some extent; tolerance works both ways and the democratic character of a society will be affected if violent and abusive attacks on the reputation of a religious group are allowed. Consequently, it must also be accepted that it may be "necessary in a democratic society" to set limits to the public expression of such criticism or abuse. FALLACY, IGNORANCE OR MISCHIEF? The fallacy, ignorance - or mischief - of western scholars in interpreting the Shiva Linga as a phallic symbol has unfortunately been swallowed hook line and sinker by left-liberal commentators without an understanding of our scriptures or the Sanskrit language or both. Such depraved / perverse interpretations are standard staple for debating warriors in the left dominated universities like the JNU. One looks askance when they become part of judgements pronounced by the higher judiciary while adjudicating in momentous matters, especially when the judgement seems to be anchored on such interpretations or when such interpretations seem to form one of the major pivots of the judgement:
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(sic). (Para 3) Did the amicus curie or other legal officers who assisted in the case mislead the court by placing before it material with an ideological slant, screening out others? The Sanskrit word Linga simply means a mark or sign. Vaman Shivram Apte's dictionary of Sanskrit has seventeen definitions of the term. The following are some of them. The image of a god A symptom or mark of disease A spot or stain A means of proof, a proof, evidence The effect or product which evolves from a primary cause The concept of grammatical gender
An example of the use of the word Linga from the Bhagavat Gita, may be cited here: Arjuna (14.21) prays Bhagavan Sri Krishna to reveal him the signs / marks / symptoms of a man who has risen above the three Gunas (the three qualities, Sattva, Rajas, Tamas), he uses the word Lingais (plural form of Linga) as a synonym for signs / marks / symptoms. Kair lingais trn gunn etn atto bhavati prabho (14.21) A few authoritative translations of the sloka are quoted below: O my dear Lord, by what symptoms is one known who is transcendental to those modes? What is his behaviour? And how does he transcend the modes of nature? (Bhaktivedanta Swami Prabhupada, A.C., His Divine Grace, Bhagavad-Gita As It Is, Collier Books, New York, 1972, p.684-5) "O Lord, by what signs is one (known) who has gone beyond these three qualities?" (Gambhirananda, Swami) "By what marks is he recognized, who has transcended these three qualities, O Lord? (Winthrop, Sargeant) What are the marks of him who has risen above the three Gunas, and what his conduct? And, how Lord, does he rise above the three Gunas? (The Bhagavadgita or The Song Divine, Gita Press, Gorakhpur, 1998, p.140-1) The following example of the usage of the word Linga in philosophy is from the Snkhya-Krik as translated in: Sarvapalli Radhakrishnan and Charles A. Moore. A
Sourcebook in Indian Philosophy. (Princeton University Press: Princeton, New Jersey, 1957; Twelfth printing 1989, ISBN 0-691-01958-4. p. 428.), which describes the role of attributes in recognition of objects perceived by the senses: Perception is the ascertainment of objects [which are in contact with sense-organs]; inference, which follows on the knowledge of the characteristic mark (linga) [i.e., the middle term] and that which bears the mark...." (Cited in Wikipedia encyclopaedia) Or look at the following aniconic interpretation of the Shiva Linga as a conceptual confluence of the holy triumvirate of the Hindu dharma: Shivalinga consists of three parts. The bottom part which is four-sided remains under ground, the middle part which is eight-sided remains on a pedestal and the top part which is actually worshipped is round. The height of the round part is one-third of its circumference. The three parts symbolize Brahma at the bottom, Vishnu in the middle and Shiva on the top. The pedestal is provided with a passage for draining away the water that is poured on top by devotees. The Linga symbolizes both the creative and destructive power of the Lord and great sanctity is attached to it by the devotees. (Bansi, Pandit Hindu Dharma cited in Wikipedia encyclopaedia) A.L. Basham a doyen of Indian historiography worshipped by the left-liberal historians has this interpretation of Lingam as a symbol of Shiva. His reference to 'a cult order' might have been picked up from an earlier Western scholar, but in any case this seems to have put an indigenous stamp on exogenous chicanery: "... Shiva was and still is chiefly worshipped in the form of the Linga, usually a short cylindrical pillar with rounded top, which is the survival of a cult older than Indian civilization itself.... The cult of the Linga, at all times followed by some of the nonryan peoples, was incorporated into Hinduism around the beginning of the Christian era, though at first it was not very important." (Wikipedia encyclopedia) For Swami Dharmananda a great saint and practitioner of Yoga there is a mysterious power in the Linga, its shape has been designed to induce concentration of the mind. Just as the mind is focused easily in crystal-gazing, so also the mind attains onepointedness, when it looks at the Linga. That is the reason why the ancient Rishis and the seers of India have prescribed Linga for being installed in the temples of Lord Shiva. (Wikipedia encyclopedia) Our scriptures are replete with instances of the worship of Shiva in the form of Linga as a means for acquisition of divine knowledge or powers or as an invocation for the triumph of good over evil. For example, in the epic Mahabharata, the great warrior Arjuna worshipped Shiva in the form of Linga for acquiring the Pashupatasthra.
In the epic Ramayana, Ravana, who was a great Vedic scholar worshipped Shiva in the form of a Linga to present his mother with the Atmalinga. Would an erudite Vedic scholar be as depraved / perverse as to present his mother with a phallic symbol? In the same epic, Sri Rama performs prathistha (installation) of a Shiva Linga at Rameswaram (hence the name) before embarking on an odyssey to defeat Ravana and liberate his divine consort Sri Sita held captive by him. Bhakt Markandeya and numerous other sages worshipped the simplest looking Linga. In order to abstain from all materialism and attain spirituality, the rishis used to retire to forests and use a lump of soil as a tool to help them concentrate on the Supreme Being. They used the Linga as a symbol to relate to cosmic energy through meditation. Defenders of Hussain have often pointed out that promiscuity was widely prevalent in Indian social life and found its reflection in erotic art. In support of this view they cite erotic bas-reliefs in temple architecture and Vatsayanas Kamasutra. Did the basreliefs and murals in temple architecture reflect promiscuity in social life or were they a necessary social corrective? Was the Kamasutra by the sage Vatsayana a text book similar to anatomy and physiology taught to medical students as a part of their curriculum or was it pornography? The views of western scholars on these subjects were as far removed from reality as they were on the subject of the Shiva Linga and as gullibly accepted without scrutiny by our left-liberal intellectuals. Finally, Hussain pleaded that in his art nudity was used as an expression of purity! In the past many commentators wondered if for Hussain nudity is an expression of purity why does he always choose Hindu subjects for his expressions of purity? Does he consider there is no purity elsewhere or in his vicinity? EPILOGUE At about the time this article was written, on September 8, 2008, to be precise, the Supreme Court upheld the judgement of the Delhi High Court. A Special Leave to Appeal (Crl No. 6287/2008) moved by Dwaipayan Venkateshachrya Varkhedkar was heard and dismissed by a bench headed by the Honble Chief Justice, K.G.Balakrishan and comprising Hon'ble Justices P. Sathasivam and J.M. Panchal. It was thus reported in the record of proceedings of the Supreme Court of India. However the secular press reported that during the course of the hearing the Honble Chief Justice K.G.Balakrishan, queried the complainant: There are so many such subjects, photographs and publications. Will you file cases against all of them? and added, It is art. If you dont want to see it, then dont see it. There are so many such art forms in the temple structures.
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VOXINDICA believes that Indian judiciary always upheld the noblest principles of jurisprudence; protected the weak from depravity, excesses, and profligacy and on several occasions from the excesses committed by ruling oligarchies. As such VOXINDICA notes with sadness a lack of sensitivity to the sentiments of eight hundred and fifty million Hindus in the Honble Chief Justices remarks. VOXINDICA most humbly wishes the Honble Chief Justice and the other Justices consider the points raised in the two sections of this article named Alternative Views and Fallacy, ignorance - or mischief! The quintessence of Indian secularism in its zeitgeist is not in separating the state from religion as the word originally connoted but in opposing Hinduism, its philosophy and social mores. The mantra of Indian media who would rather wear secularism on its sleeve is to oppose any opposition of Hindu organisations - which for them come under the collective moniker of the Sangh Parivar. Therefore if Hindu organisations protest against M. F. Hussains paintings as derogatory of Hindu gods and goddesses, then the secular brigade must rush to his defence. Indian media dotingly refers to members of the Sangh Parivar as goons. For them, there are no goons in other religions and that is a fact. And every time there is a reference to religious fundamentalism (in other religions) the spectre of Hindu fundamentalism had to be invoked, in the name of balance! REFERENCES: Artistic Freedom and Social Responsibility. (2007) VOXINDICA June 2007, Accessible from: http://voxindica.blogspot.com/2007/06/artistic-freedom-socialresponsibility.html Freedom of religion and other beliefs. (1994). Otto-Preminger-Institut v. Austria, (13470/87) [1994] ECHR 26 (20 September 1994). Accessible from: www.hrcr.org/safrica/religion/Otto.html M. F. Hussain Vs. Ajay Singh Naruka, Dwaipayan V. Varkhedkar and Raj Kumar Pandey, Criminal Revision Petition NO.114/2007 (2008), May 8, 2008, Accessible from:http://delhicourts.nic.in/May08/MAQBOOL%20FIDA%20HUSAIN%20VS.%20RAJ%20 KUMAR%20PANDEY.pdf Otto Preminger Institute V Austria. (1994). Otto Preminger Institute v. Austria. ARTICLES: 10; 26. Accessible from: www.mediator.online.bg/eng/ottopr_e.htm
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Sunday, June 24, 2007
Artistic Freedom and Social Responsibility

The debate on "art and freedom of expression'' triggered by protests against M. F. Husseins paintings of Hindu gods and goddesses, is skewed on three counts. The first is Indian media's anti-Hindu bias. The second concerns the misconception about erotic sculptures in temple bas-reliefs that they represent Hindu gods and goddesses. The third relates to the questions, "Is artistic freedom absolute?" and "What, when the absolute artistic freedom militates against the freedom of religion of a multitude?" This article deals with the subject citing rulings of Austrian courts and the European court of human rights. MEDIA BIASES John Storeys observation about all basic assumptions of (British) cultural studies being Marxist, is equally relevant to the Indian context: [...]This is not to say that all practitioners of cultural studies are Marxists, but that cultural studies is itself grounded in Marxism. All its major texts are informed, one way or another, by Marxism; whether or not their authors regard themselves as Marxist, post-Marxist or rhetorical Marxists (using rhetoric, vocabulary, models, etc., without, necessarily, a commitment to the politics). (Cultural Theory and Popular Culture by John Storey, Pearson Education, 1998, p. xi) Kushwant Singh the epitome of secular values for the media community recommended banning the Satanic Verses, in effect condemning Salman Russhidie into living incognito for ever. Then there was no clamour about artistic freedoms being in peril. Now the same Kushwant Singh defends Hussain! An update: March 21, 2010. Singh wrote recently in his weekly column in DECCAN CHRONICLE, rather sheepishly that the ban benefited the book by increasing its sales. Self-justification? Remorse? Senility? We leave it to you to judge! When the eminent columnist T. J. S. George had to run for cover for offending a particular community to use evasive journalese - which expression does not seem to circumscribe freedom of expression - the media was not up in arms to protest. The media tasted the wrath of the particular community when offices of all the four main newspapers in Benagluru were attacked on different occasions. The lessons learnt almost a decade ago seem to have long lasting effect for the media did not venture to express solidarity with its Danish brethren in the recent cartoon controversy. However it would be inappropriate to inculpate Muslims alone of intolerance of media freedom, when it offends their sensibilities. Our media was equally quiescent when
recently, secular party workers of DMK burnt down the offices - along with three unfortunate employees - of Dinakaran in Tamil Nadu, all in the good cause of an internecine warfare in the ruling dynasty there. Contrast this with the campaign it ran when some Hindu organisations protested against the making of Water. The movie is an anachronism as the social malady - of course, of the Hindu society - it sought to portray is nearly a century old and no longer exists. The ideological motherlands of our left-liberal intellectuals never shied away from curtailing artistic freedoms. The land of Lenin banned Dr. Zhivago and imprisoned its author Boris Pasternak to prevent him from receiving the worlds greatest literary award, the Nobel Prize. Another Nobel winner, Alexander Solzhenitsyn, who exposed the plight of soviet intellectuals in his The First Circle, was exiled. The land of Mao respects the freedom of expression much more brazenly: in the Tiananmen Square Massacre, in 1989, it gunned down 2000 - 3000 people using tanks and machine guns against unarmed civilians - intellectuals, labour activists and students protesting against galloping corruption in the ruling communist party. COURTESANS NOT GODDESSES The second bias concerns the bas-reliefs in temple architecture. Media men and women who claim to thoroughly research the stories they put out either mischievously ignore or are ignorant about the background of the bas-reliefs. They often ask, why object to erotic depictions in art when gods and goddesses were depicted in erotic postures on Hindu temples? The subjects of temple bas-reliefs are not gods and goddesses as our intrepid media men and women - and self-styled intellectuals glibly describe them but heavenly courtesans. They were depicted in temple basreliefs more for social than religious reasons. During the ninth and tenth centuries people were veering to the bhakti-cult and ignoring mundane chores such as sex and procreation resulting in a diminution of the population. The population diminution effect was exacerbated by Muslim invasions from the north at the same time. The intellectuals of the time introduced erotic bas-reliefs on temples to dispel the myth that sex was sin - an obvious if false corollary of the bhakti-cult and to rejuvenate the dwindling population. Those who cite bas-reliefs in temple architecture in Hussains defence also ask another nave question: is the cultural ethos of our motherland, steeped in the Hindu religion, so fragile as to wither away because of a few paintings which a majority of the population does not get to see anyway. This rhetorical question cleverly if speciously introduced into the debate leads us to the third bias. IS ARTISTIC FREEDOM ABSOLUTE? The third bias is about the nature of freedom or freedom per se. Is any freedom absolute? A ruling of the European Court of Human Rights adjudicating in a matter concerning the freedom of speech based on Article 43 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (Convention), amply clarifies the matter. (Freedom of religion and other beliefs. [1994]. Otto-PremingerInstitut v. Austria, 13470/87- 1994 - ECHR 26, September 20,1994.) The case concerns whether the Austrian government violated article 10 of the Convention in seizing the film Das Liebeskonzil (Council in Heaven) as ordered by the Innsbruck regional court. The facts in the case are as follows: Otto-PremingerInstitut fur audiovisuelle Mediengestaltung (OPI), a private non-profit making organization was to screen the film Das Liebeskonzil (Council in Heaven) by Werner Schroeter. The film was based on Oskar Panizzas satirical tragic-drama set in Heaven and performed by Teatro Belli in Rome. In Schroeter's film, God's representatives on Earth carrying the insignia of worldly power closely resemble the heavenly protagonists. The film, targeted trivial imagery and absurdities of the Christian creed in a caricatural mode and aimed at investigating the relationship between religious beliefs and worldly mechanisms of oppression. The theme of the film was far more derogatory to the Christian religion than the Da Vinci Code. At the request of the Innsbruck diocese of the Roman Catholic Church, the public prosecutor, instituted criminal proceedings against OPI for disparaging religious doctrines, an act prohibited by section 188 of the Austrian penal code. The Innsbruck regional court ordered the seizure of the film and the Innsbruck Court of Appeal upheld the order. What is important to note here is that the Court of Appeal considered that artistic freedom was [...] necessarily limited by the rights of others to freedom of religion and by the duty of the state to safeguard society based on order and tolerance. The court further held that indignation was justified to attract penal provisions (of Austria) as the film offended the religious feelings of an average person with normal religious sensitivity [...] Further, [...] the whole derision of religious feeling outweighed any interest the general public might have in information or the financial interests of persons wishing to show the film. The trial courts observations about artistic freedom/s are worth noting and hence are quoted here in some detail: Article 17a of the Basic Law guarantees the freedom of artistic creation and the publication and teaching of art. The scope of artistic freedom was broadened (by the introduction of that article) to the extent that every form of artistic
expression is protected and limitations of artistic freedom are no longer possible by way of an express legal provision but may only follow from the limitations inherent in this freedom [...] Artistic freedom cannot be unlimited. The limitations on artistic freedom are to be found, firstly, in other basic rights and freedoms guaranteed by the Constitution (such as the freedom of religion and conscience), secondly, in the need for an ordered form of human coexistence based on tolerance, and finally in flagrant and extreme violations of other interests protected by law, the specific circumstances having to be weighed up against each other in each case, taking due account of all relevant considerations. The 9-member commission of the ECHR in its 6-3 judgment held that in the case there was no violation of the Convention. The majority of judges held that [...] whoever exercises the rights and freedoms enshrined in the first paragraph of that Article (10) undertakes "duties and responsibilities". Amongst them - in the context of religious opinions and beliefs - may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. This being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that any "formality", "condition", "restriction" or "penalty" imposed be proportionate to the legitimate aim pursued. Further, the judges held that Article 10 cannot be interpreted as prohibiting the forfeiture in the public interest of items whose use has lawfully been adjudged illicit... Although the forfeiture made it permanently impossible to show the film anywhere in Austria, the Court considers that the means employed were not disproportionate to the legitimate aim pursued and that therefore the national authorities did not exceed their margin of appreciation in this respect. The dissenting judges, while holding that the Convention does not guarantee religious freedoms, nonetheless agreed that: [...] it must be accepted that it may be "legitimate" for the purpose of Article 10 to protect the religious feelings of certain members of society against criticism and abuse to some extent; tolerance works both ways and the democratic character of a society will be affected if violent and abusive attacks on the reputation of a religious group are allowed. Consequently, it must also be accepted that it may be "necessary in a democratic society" to set limits to the public expression of such criticism or abuse.
REFERENCES: Freedom of religion and other beliefs. (1994). Otto-Preminger-Institut v. Austria, (13470/87) [1994] ECHR 26 (20 September 1994). Accessible from: www.hrcr.org/safrica/religion/Otto.html OTTO PREMINGER INSTITUTE V Austria. (1994). Otto Preminger Institute v. Austria. ARTICLES: 10; 26. Accessible from:www.mediator.online.bg/eng/ottopr_e.htm Storey, John. (1994). Introduction: The Study of Popular Culture and Cultural Studies in Storey, John (Ed.) Cultural Theory and Popular Culture: A Reader. Harlow. Pearson Education.
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Artistic Freedom / M. F.

Hussain Debate Excerpted From VOXINDICA

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