People's Democracy

Delhi HC Says No To Censorship  Through Mob Violence & Court Action

S M Menon

WHETHER M F Husain is observant or otherwise of the faith he was born into is immaterial. For the cultural police squads that arose on the wave of Hindutva zealotry, the name he bears was sufficient cause to bar him from dealing with motifs that they regarded as their exclusive property, subject to reinterpretation only in accordance with their political compulsions.

The arguments for and against Husain have been rehearsed endlessly ever since he became the focus of Hindutva ire in the mid-1990s. As the eminent constitutional lawyer Rajeev Dhavan put it, most recently at a May 19 meeting organised by the Safdar Hashmi Memorial Trust (SAHMAT) to mark the Delhi High Court ruling, the fundamental premise on which the campaign against Husain was constructed was his ineligibility --- as member of a supposedly alien faith --- to use symbols deemed to belong to India�s only true indigenous faith. Eminent painter Hakku Shah released the SAHMAT publication brought out about the cases and the Delhi High Court verdict.

The Delhi High Court, by a judgement delivered May 8, 2008 by Justice Sanjay Kishan Kaul in the matter of Maqbool Fida Husain versus others, dismissed the summons issued Husain in a diverse number of cases filed by individual litigants. There were three grounds on which the petitioners from places as far afield as Pandharpur (Husain�s home village in Maharashtra), Bhopal and Delhi, had filed for criminal proceedings against Husain: �obscenity� which warrants prosecution under articles 292 and 294 of the Indian Penal Code (IPC), �causing offence to religious sensibilities,� which is covered under articles 295 and 298, and �creating ill-will among communities on religious grounds� which is covered under article 153. Justice Kaul�s judgement rejecting all three grounds for prosecution, is valuable in bringing the focus back on the fundamentals of the right to creative expression.

To first take up the charge of �causing offence to religious sensibilities,� Justice Kaul has clearly held that the charge under these sections of the IPC must establish the intent to cause such offence. In other words, an untitled painting rendered by Husain at some point in the distant past, which passed into a private collection and was brought out to the public domain in 2006 under the title �Bharat Mata� as part of an art auction for the victims of the Kashmir earthquake of October 2005, does not establish any such intent. As Justice Kaul observes in paragraph 107 of his judgement, �the impugned painting cannot form the basis of any deliberate intention to wound the religious feelings of the complainants since the figure, on the basis of the identity alleged, represents an anthropomorphic depiction of a nation.� To hold a person liable under this section of the law, it may not be sufficient to argue that he may have had �knowledge of the likelihood that the religious feelings of another person may be wounded.� There is a need, in other words, to establish deliberate intent.

As the art critic and theorist Geeta Kapur has put it, this ruling embodies a �call for the application of mind in the judicial sense of that term but also a call for an application of mind with regard to cultural creation, visual literacy and the play of imagination --- to be able to recognise its stylistic modes and its inherently metaphorical nature.�

When it comes to the charge of �obscenity� though, the test of intent does not apply. From an extended review of case law on �obscenity,� Justice Kaul concludes: �Knowledge is not a part of the guilty act. The offender�s knowledge of the obscenity of the impugned matter is not required under the law and it is a case of strict liability.� In other words, whether he had the intent or not, whether the knowledge existed or not, if an act, an utterance, a song, or a representation by an individual meets the criterion of �obscenity� in a social framework, that individual is liable under the law.

Within this strict standard though, Justice Kaul points out in paragraph 70 of his landmark judgement, that �to fall within the scope of �obscene�.... the ingredients of the impugned matter/art must lie at the extreme end of the spectrum of the offensive matter.� The complainants against Husain had sought to buttress their charge of �obscenity� on the basis of �the nudity of the figure depicted in the painting and the identity of the figure alleged as �Bharat Mata�. � But Justice Kaul concludes in paragraph 72 after weighing all the evidence, that �the alleged identity of the figure has no bearing on the alleged obscenity of the said painting. The alleged �Bharat Mata� painting in issue was at no given point in time either given a title or publicly exhibited by the petitioner. The petitioner had no involvement in any manner with the said on-line auction for charity.�

All these are significant contributions to the right to free expression. Justice Kaul also makes a significant breakthrough in the matter of jurisdiction, for this age of the internet and all its possibilities of instant communication. A nonagenarian artist with no greater ambitions than living out the rest of his years in peace and tranquillity, has for over a decade been venomously targeted and forced to flee the milieu he has loved and flourished in, merely because political circumstances have made his variety of celebratory, eclectic art a taboo. And the wide diffusion of his work through the new modes of communication available, has made it easier for politically motivated individuals to target him.

In this context, Justice Kaul warns that the criminal justice system �ought not to be invoked as a convenient recourse to ventilate any and all objections to an artistic work.� This makes the role of the magistrate who first receives the complaint, not merely �discretionary� but �obligatory.� The magistrate is obliged to �scrutinise each case in order to prevent vexatious and frivolous cases from being filed� and to ensure that litigation is not used as �a tool to harass the accused, which (would) amount to a gross abuse of the process of the court.� Where private complaints are involved, they should typically not be admitted without prior investigation.

There has been a wealth of rulings decreeing that where a multitude of cases arises from a single incident, requiring the respondent to appear in different jurisdictions, the cases should be centralised in one single judicial forum for ease of disposal in accordance with principles that will be consistent internally and would serve as firm precedent. Such a practice would also spare the respondent from undue harassment. By invoking separate jurisdictions and often, different clauses of the law, the forces of social bigotry have ensured for long that Maqbool Fida Husain has become a marginal presence in Indian social life. The May 8 ruling by the Delhi High Court, hopefully, represents the death sentence for this particular strategy for the incessant harassment of artistic creativity.

Justice Kaul�s ruling also sets the stage for restoring a measure of sobriety and reason to the assessment of a lifetime of work by one of modern India�s greatest creative artists. As the art critic Geeta Kapur puts it: �Husain believes in taking Indian iconography on a long march --- dislodging it from its traditional moorings and bringing it into contemporary times and he does so in the spirit of a fellow-traveller --- a fellow traveller of the mythic figures, as he is of the common men and women, as they as they come to be together transformed from civilisational into national aspirations.�

Far from being an interloper, Husain deserves to be honoured as a key figure in the retrieval of the authentic and the emerging modernity of Indian artistic traditions.