lawyers in India

Freedom of art under siege in India

Written by: Pallabi Ghosal - 4th year NLIU, Bhopal
Constitutional Lawyers in India
Legal Service
  • 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 vs The State of Maharashtra 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 vs Amal Mitra. 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.

    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., 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., last visited 26th May, 2007
    9., 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., last visited 15th June, 2007
    21. 378 US 184, 197 (1964)

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