Introduction
It is often quoted that, beauty lies in the
eyes of the beholder, like the beauty in the reclining
female nude ‘Titian’ (1485-1576) or the heroic ‘David’ by
Michelangelo Buonarroti (1475-1564). They are more than sum of
their parts; they reflect very specific notions of beauty. We find
more than pearly ‘flesh’ in Titian. We see moral code, notably the
expression of virginity, chastity and fidelity . The fiery
intensity of David’s facial expression exemplifies the terribilità
(emotional intensity) and the whole figure demonstrates his
mastery of the male nude. Not only in Western art, but in Indian
art also erotic sculptures appear on the very earliest temples
like the ‘Mithuna’ image or the erotic couple in Bhubeneshwar,
Konarak and Puri in Orissa (150-1250 AD); Khajuraho in Madhya
Pradesh (900-1050 AD); Limbojimata temple at Delmel, Mehsana (10th
Century AD); Kupgallu Hill, Bellary, Madras ; and Nilkantha temple
at Sunak near Baroda to name a few .
The erotic i.e. the so called
obscene or frankly sexual, as distinct from amorous, sculptures of
India are very unique: the erotic art in India is religious in
character in as much as it is executed on temples. Sex worship and
pictoral rendering of the union between man and woman is common to
Ancient Indian art. The figurines of ‘Lajjya Gauri’ found in
Chalukyan temples of Alampur and Bhavanasi finds its resemblance
to Goddess Aditi where she is depicted in the nude.
This and many other figures
are taken as cult figures in which rituals related to Kanya and
Kumari worship for progeny gained deep roots in early century A.D.
Even the very concept of ‘Lingam’ of
the God Shiva resting in the centre of the Yoni, is in a way
representation of the act of creation, the union of Prakriti and
Purusua.
Thus we see that our
ancient Indian art was not devoid of eroticism. But when this
contained erotic tradition is not respected, we find the
boundaries of visible and aesthetically acceptable challenged.
Purity gives way to danger, beauty is replaced with obscenity,
grace with abjection and modesty with the explicit. Sexual desire
is no longer staged between the viewer and the object in the image
so that the former may be elevated, his/her mind raised above the
flesh to ponder on the spirit. The viewer is no longer seduced,
he/she is shocked, the eye is affronted and moral certainty
disturbed. The erotic purity is replaced with impure explicit
sexuality . Indian art of late has 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’.
In October 1996, Bajrang
Dal volunteers broke into Herwitz gallery in Ahmedabad and
destroyed a number of rare and acclaimed paintings by M.F.Hussian,
a 91 year old leading veteran of Indian art. It was said that
Hussain had painted Goddess Saraswati in the nude and therefore
hurt religious sentiments. Some of his other paintings of Hussain
that have been tagged as obscene are that of the Bharatmata, naked
Sita on long tail of Hanuman, Goddess Durga in the nude having
sexual intercourse with a tiger to name a few. On 12th May 2007, a
final year student in the Faculty of Fine Arts at Maharaja
Sayajirao University (MSU) in Vadodara (Gujarat), was arrested and
has been charged under Sections 153A, 114, and 295 of the Indian
Penal Code for promoting enmity between
different groups on grounds of religion, race etc, committing acts
prejudicial to the harmony of the public, through his
paintings. He was denied bail and transferred to Central Jail and
was released on bail after four days of imprisonment due to
pressure of public protest.
This incident has yet again
raged many issues: Whether an artist is no longer free in this
country to depict what he/she likes? Whether like films, Indian
art also has to pass through a ‘Censor Board’? Whether these
paintings can be classified as obscene; to be hurting religious
sentiments and being immoral? And ultimately, who will be the
judge to determine whether something is obscene or not?
Legal Position Of Various Countries On Obscenity
In the United States, ‘obscenity’ was defined to mean that which,
to the average person, when taken as a whole, applying
contemporary community standards, was found to have the dominant
theme which appealed to prurient interests in sex; portraying
sexual conduct in a patently offensive way and lacking any serious
literacy, artistic, political or scientific value . This
formulation was reaffirmed in Miller v
California and in substance; this is the law on the subject
of obscenity in the United States, barring exceptions that have
been carved out for greater protection of children. Way back in
1868, Chief Justice Cockburn in England said that obscene material
was that which had the tendency to deprave and corrupt those whose
minds were open to such influences and in whose hands it was
likely to fall. In 1959 when The Obscene Publications Act came
into force, it also incorporated the phrase,
tendency to deprave and corrupt but it failed to absolutely
define what was meant by the phrase and this was severely critized
in the Dingle Dangle No.3 case (1972) wherein Lord Reid, for the
House of Lords, ruled that corrupt is
a strong word meaning much more than to
lead astray morally.
This would mean that
consensual sexual activity between adults, on this reasoning,
however graphic the details may be, as depicted in videos and
other related materials, would not be held to be ‘obscene’.
Convictions for obscenity would not take place unless the work
contained images relating to children, animals, non-consenting
adults, or gross degradation. Under Canadian law obscene material
has been defined to be such which exploits sex as a dominant
characteristic and such exploitation must be undue . Explicit sex
that is not violent and neither degrading nor dehumanizing is
generally tolerated under the Canadian Law and does not qualify as
undue exploitation of sex unless it employs children in its
production. The bottom line is that the material is always viewed
as a whole.
The
Japanese Supreme Court has been rather pragmatic in its approach when dealing with
subjects like obscenity. Instead of analyzing and going into
grounds or justification for upholding obscenity laws under
Article 175 of their Constitution, the degree of explicitness of
visual images have been taken as the yardstick to determine and
define obscenity . Korean approach, to start with, towards legal
proscription of obscenity was strict and conservative. In ‘The
Revolting Slave’s’case, a novel bearing the said title contained a
two page description of sexual intercourse. The Korean Supreme
Court in ‘Happy Sara’ case (1995) ruled that the said depiction
was not so ‘explicit’ and ‘specific’ as to ‘excessively’ arouse
sexual desire or to ‘considerably’ harm normal sexual morality.
Additionally, the court ruled that the novel, taken in its
entirety, had to be considered, and when done so, could not be
considered as obscene.
In sum total one can say
that the necessary yardstick that is followed in these countries
is three, (1) prevalent community standards (2) work to be taken
in its entirety (3) to keep even sexually explicit material
outside the definition of obscenity unless it is degrading,
dehumanizing or involving children.
Position In India
In India ‘obscenity’ has been defined
under Section 292 of the Indian Penal Code. Under such definition,
after its amendment in 1969, obscenity is defined as that which is
lascivious or appeals to prurient interest or which has the
tendency to ‘deprave’ and ‘corrupt’ those who are likely to be
exposed to it. Before its amendment, the provisions had lacked any
definition of obscenity. The definition of obscenity came up first
for consideration in the case of Ranjit D.
Udeshi v. State of Maharashtra .
In
Udeshi case, a person had been convicted for selling the
unexpurgated version of D.H. Lawrence’s ‘Lady Chatterley’s Lover’.
This case relied on the Hicklin test as laid down in the
nineteenth century by Chief Justice Cockburn in
Rex v. Hicklin . ‘Hicklin Test’
defines obscenity to mean that which has a tendency to deprave and
corrupt those whose minds are open to such immoral influences and
into whose hands the material may fall.
The Supreme Court, after
much deliberation, declined to treat the work as a whole and
instead chose to focus on the impugned passages, solely and
exclusively, in exclusion to the rest of the work. However it went
on to say that where art and obscenity are mixed, what must be
seen is whether the artistic, literary or social merit of the work
in question outweighs its obscene content. The element of art must
be so prepondering as to overshadow the obscenity or make it so
trivial / inconsequential that it can be ignored. It went on to say
that the delicate task of deciding what is artistic and what is
obscene has to be performed by the courts and as a last resort by
the Supreme Court, the evidence of men of literature or others on
the question of obscenity is not relevant.
Then the case of
Shri Chandrakant Kalyandas Kakodkar v. The
State of Maharashtra & Others went a step further and
refused to treat the passages accused of obscenity in isolation
and instead stressed on the need to treat the impugned passages in
the overall context of the work. And herein it was stressed most
vehemently that the standards of contemporary society in India is
fast changing. The adults and adolescents have available to them a
large number of classics, novels, stories and pieces of literature
which have a content of love, sex and romance. If a reference to
sex by itself is considered obscene, no books can be sold except
those which are purely religious. It said that in the field of art
and cinema many things are shown which even a quarter of a century
ago would be considered as derogatory of public morality and what
we have to see is whether a class and not an isolated case suffer
in their moral outlook.
Then came the ruling in
Samresh Bose &Another v.. Amal Mitra &
Another . Herein it was said that the test to hold in our
country (regard being to our community mores) is that obscenity
without a pre-ponderating social purpose or profit cannot have the
constitutional protection of free speech and expression, and
obscenity is treating with sex in a manner appealing to the carnal
side of human nature, or having that tendency. It further said
that the court may draw upon the evidence on record and also
consider the views of reputed or recognized authors of literature
on such questions to help the court in discharging the duty of
making a proper assessment.
Today the basic test of ‘obscenity’ is:
(a) whether the average person applying contemporary community
standards would find that the work, taken as a whole appeal to
prurient interest;
(b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by applicable state law
and
(c) whether the work taken as a whole lacks serious literary,
artistic, political or scientific value.
We also have the
Indecent Representation of Women
(Prohibition) Act, 1986, administered by Department of
Women and Child development, Ministry of Human Resources
Development. Section 3 of this Act prohibits the publication,
exhibition or advertising of anything that contains indecent
representation of woman in any form. Section 4 (a) (i) provides
exception to any book, pamphlet, paper, slide, film, writing,
drawing, painting, photograph, representation or figure:
publication of which is justified on the ground of science,
literature, art or learning or other object of general concern and
(ii) which is kept or used bona fide for religious purposes.
Artistic Freedom
Article 19(1) (a) of our Constitution provides for freedom of
speech and expression. Obscenity, whatever its definition may be,
is a matter of expression. However the said freedom of expression
can be reasonably restricted by the State through passing of law
on grounds including, amongst others, that of ‘public decency or
morality’.
But the big debate is:
should artistic freedom be curbed on the grounds that it is
against public decency and morality? Indeed it should be, but then
what is its extent? Will the likes of Bajrang Dal volunteers or
BJP leader Niraj Jain be the ones to determine what is hurtful to
ones morality, ones religious sentiments, such that it is obscene?
Well such is the
situation in our country where it has become most difficult and
most traumatic for an artist to think freely and display his
creativity on canvass. It is here that vandalism of art is going
on by the self proclaimed ‘moral police’. And it is here that the
courts of our country have to play a very important role to put an
end to this robbery of Indian art. In T.
Kannan v. Liberty Creations Ltd.(2007) the Madras High
Court has said that there should be a substantial allowance for
freedom thus leaving a vast area for creative art to interpret
life and society with some of its foibles along with what is good.
Art and literature include within themselves, a comprehensive view
of social life and not only in its ideal form.
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 ban it as obscene. The paintings of Chandra Mohan depicts
the image of a suffering Jesus on the Cross And it can be
interpreted to mean a lot of things: one among them could be that
the suffering of Christ on the cross has led his body to a
condition of utter dissolution, turning Him into a fleshless state
symbolized by water (fluids of the body). As His body drains into
a receptacle (a modern commode), it takes its form as new life of
elementary creatures (fish). In fact, the theme of water flowing
out from the body of Christ after his crucifixion by those who
disapproved of his ideas is mentioned in the Bible and is a
revered part of the story that is read out in churches all over
the world at the remembrance of his death on Good Friday. Then why
jump to come to the conclusion that the water dripping from the
cross is ‘semen’?
The images of naked
birth-giving goddesses are entirely part of Indian religious
iconography. In his second painting, the courageous Goddess Durga
is enacting the crime of feticide. Here she is shown giving birth
to a full grown man and is attempting to kill him as she
safeguards the process of fertility. The Durga image is available
in multiple forms, ranging from the benign to more wild forms. It
is just that our eyes are used to seeing the pleasant forms of the
goddess. In fact, in our religious literatures such as the Devi
Mahatmya, Chandi Purana and Shiva Purana, the Goddess Durga is
described in most ferocious terms, often without clothes, killing
demons, drinking their blood and wearing the heads of the demons
as garlands.
Thus we see that ‘art’ can
not be interpreted figuratively. It can not be stripped from its
symbolic meaning and it is here I find myself agreeing with Mr.
Justice Stewart of the US Supreme Court in
Jacobellis v. Ohio , who found it advisable to define
‘obscenity’ in these terms, I know it when I
see it. The courts of our country have to see each
painting, see its context, theme, see whether nudity has been used
just as a gimmick, take the opinion of renowned artists in India
and apply the test of obscenity laid down to determine whether the
art in question is indeed obscene or not.
Conclusion
Once a very renowned artist Pablo Picasso had said,
Art is never pure; we should keep it far
away from the innocent ignorant. We should never let people
approach. Yes, art is dangerous. If it is pure it is not art.
And today we have a host of ignorant people who are vandalizing
art and pushing us towards a pre-renaissance era. It is because of
them that today artists in India have to think twice before
exhibiting their paintings. It is my opinion that the students
body should rise to the challenge and spread awareness with
regards to the standards of ‘obscenity’ in our country; and
individual’s freedom of speech and expression. We should not
forget that India is a rich land of art and culture and now in
this age of modernization, we should embrace different thinking
and different thoughts and ideas with open arms.
*****
End Notes:
1. Eroticism and Art, Alyce Mahon, Published 2005, Oxford
University Press
2.
http://arthistory.heindorffhus.dk/frame-Michelangelo.htm,
last visited 1st June, 2007
3. The Rock Engravings of Kupgallu Hill, D.H.Gordon, MAN, Vol 51,
Sep 1951 pp 117-119
4. The Erotic Sculptures of India, Y. Krishnan, Artibus Asiae, Vol
34 No.4, 1972 pp.331-343
5. I.K. Sharma, 'Brahmanical Brick Temples and Cult Images from
Keesaragutta' (Article) in Kusumanjali, Vol.I, Ed. by Nagaraja Rao,
pp.236-237 ff.
6. Erotic Sculpture of India, Unakant P. Shah, Journal of American
Oriental Society, Vol. 82 No. 1 (Jan-March 1962) pp 99-1027.
Eroticism and Art, Alyce Mahon, Published 2005, Oxford University
Press
8.
http://www.sanatan.org/hussain/campaign/painting.php,
last visited 26th May, 2007
9.
http://www.rationalistinternational.net/article/2007/20070518/en_4.html,
last visited 25th May, 2007
10. Roth v. US, 354 US 476
11. Miller v. California, 413 US 15
12. R v. Butler, (1992) 1 SCR 452
13. Koyama v. Japan, 11 Keishu 997( Sup. Ct. GB March 13, 1957)
14. 1965 (AIR) SC 881
15. (1868) 3 QB 360, 371
16. AIR 1970 SC 1390
17. 1986 (AIR) S 967’
18. Director of Doordarshan and Ors. v. Anand Patwardhan, JT
2006(8) SC 255
19. United States v. Playboy Entertainment Group Inc. 146 L.ed 2d
865
20.
http://indianartnews01.blogspot.com/2007/05/artists-and-academics-respond-to-baroda.html,
last visited 15th June, 2007
21. 378 US 184, 197 (1964) |
freedom of art under seige in India
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author can be reached at: pallabi1987@legalserviceindia.com /
