AUTHORED BY - Ritwik Guha Mustafi, 3rd-year law student from School Of Law, CHRIST (Deemed to be University), Bangalore and currently he is pursuing B.A.LL.B (Hons.)
‘If freedom of speech and expression is taken away, then dumb and silent we may be led, like sheep to the slaughter’.
Liberty is the ability to do as one
pleases but the exercise of liberty is subject to capability and limited by
rights of others.[1]
The first principle of a free
society is an uninterrupted flow of words in an open forum.[2]
The principle of freedom of speech supports the idea of an individual or
community to articulate their opinions without any fear of retaliation,
censorship, or unreasonable legal sanctions.[3]
Article
19(1) (a) of the Indian Constitution provides for the right to freedom of
speech and expression. This right along with 6 other rights given by Article
19(1) is subject to reasonable restrictions provided in Article 19 (2) which,
inter alia, includes restrictions based on public order, decency, and morality.
The courts gauge the reasonableness of the restrictions from both procedural
and substantive sides.[4]
Art
involves the conscious use of skill and creativity for production of aesthetic
objects and is a remarkable mode of depicting culture from all over the world.
Artistic freedom includes the freedom to create and distribute diverse cultural
expressions free of government censorship or interference from non-state actors[5]
and the rights of citizens to access artistic expressions and take part in
cultural life.[6]
There
has been no dearth of erotic art in ancient India. Some examples are the
sensuous depiction of princesses in a Buddhist monastery in Ajanta[7],
admiration of the state of nudity in sculptures of Virupaksha temple etc.[8]
The
moment this contained erotic tradition isn’t respected, the boundaries of
visible and aesthetically acceptable are challenged. The viewer is no longer
seduced at this point, rather he is shocked and his moral certainty is
disturbed.[9]
In this article, the researcher has examined
the challenges to artistic freedom in India and has analyzed Indian cases
dealing with the concept of obscenity. The purpose is to highlight the lapses
in the Indian laws for the protection of artists and provide suggestions to fix the
same. It can be hypothesized that there is a dearth of proper laws in India for
protection of artists and the system needs to be improved further.
The challenges to artistic freedom in India
The Indian state has always been ambiguous about the freedom of artistic expression. The level of intolerance is much higher nowadays.
Due to the immense cultural diversity of India,
the chances of conflicts on grounds of group sentiments are always there.
However, the suppression meted out to the artists is often unreasonable.
The artists in India have to think twice before
touching upon the culturally sensitive issues. They always have the fear of
threats and unreasonable moral policing.
One example is that of the painter M.F. Husain.
Eight criminal complaints were filed against him[10]
and in 1998, his house was attacked by the Hindu fundamentalist group Bajrang
Dal and his works were vandalized.[11]
One of the restrictions on freedom of speech and expression is based on public order, morality, and decency. One element which greatly threatens the aforementioned grounds is obscenity which isn’t properly defined and is a very controversial topic with regards to artistic freedom. Community guidelines on social media are not specific enough to understand what obscene content is and hence various artistic works are removed unjustly from websites.
Obscenity: An ambiguous ground for restricting artistic expression
Section 292 of the Indian Penal Code
(hereinafter IPC), 1860 defines obscenity as that which is lascivious or appeals to a prurient interest or which has the tendency to
deprave or corrupt those who’re likely to be exposed to it.
In a landmark case, the Supreme Court of India
relied on the ‘Hicklin test’ laid down by Cockburn, C.J. in R v/s Hicklin
(1868). This test examines whether the impugned material tends to deprave and corrupt those whose minds are open to such immoral
influences.
The apex court stated here that since section
292 of IPC, 1860 doesn’t define obscenity,
the court has duty to decide what is artistic and what is obscene. The work
should be viewed as a whole, but the obscene matter should be separately
considered to see if it violates the test. Where art and obscenity coexist, art must so preponderate to make the
obscenity trivial.[12]
The Hicklin test, which was being relied upon
in the aforementioned case, was very controversial in the U.S. After this test
was laid down, the 1959 Obscene Publications Act came into force in the U.S. and it
incorporated the phrase ‘tendency to
deprave and corrupt’ but failed to adequately define the same. It is to
be noted that the Hicklin test was ruled inappropriate by the U.S. Supreme
Court and a new test [Roth test] was laid down in its place which stated that
the impugned material would be obscene if
the dominant theme of the material, taken as a whole and after applying
contemporary community standards appeals to the prurient interests of an
average person.[13]
In another case, the apex court stressed the
need to treat the impugned parts to the overall contexts of the work. The court
observed that the standards of
contemporary Indian society are changing rapidly. If the reference to sex
by itself is treated as obscene, then only religious books could be sold.[14]
The apex court stated in another case that if obscenity is without a social purpose or
profit, it can’t be protected by the right to freedom of speech and expression.[15]
In the Indian cases referred to in this
article, nowhere has the apex court adequately defined ‘obscenity’, hence
contributing to the ambiguity regarding the issue. Nowhere
in these cases did the court mention anything about consultation with the
experts of the field while determining whether the impugned material is obscene
or not.
Suggestions
Ø Art
cannot be interpreted figuratively and cannot be stripped from its symbolic
meaning and thus, a clear-cut definition of ‘obscenity’ is advisable.[16]
Ø It’s important
for the courts to consult with the art experts before making any decisions in
the artistic area. The simple reason is that the experts of a particular field
have more knowledge about the nuances of that field which the court lacks.[17]
Ø Artists
have to be protected from unreasonable moral policing. The UNESCO global
reports monitoring the implementation of 2005 Convention on the Protection and Promotion
of Cultural Expressions have provided a framework for enhancing cultural
policies worldwide.[18]
These reports can be referred for making effective laws and guidelines for
regulating the artistic expression in India.
Conclusion
In a
diverse country like India, conflicts are bound to happen. When these issues
and conflicts are touched, expressed, and advised upon by the artists, they
should not be suppressed merely because these are sensitive issues. Art can a
powerful means of communication, which has the capability of reaching out to
the masses in a non-violent manner and can also generate a feeling of hope.
We conclude that there is
a dearth of proper laws for protecting the rights of the artists from getting
infringed in India. The
system needs to be improved to
accommodate other alternative means of expression that prevail in the society.
REFERENCE :
[1]JOHN STUART MILL, ON LIBERTY 7-9
(4th ed. 1869).
[2]Dheerendra Patanjali, Freedom of speech and expression India v.
America- A study, INDIA LAW JOURNAL (June 30, 2020, 06:30 P.M.), https://www.indialawjournal.org/archives/volume3/issue_4/article_by_dheerajendra.html
[3] James V. Fee, Today’s Speech, 21 Communication
Quarterly 45-48 (1973).
[4]Kalyani Sen, The Provision of Individual Liberty in the Constitution of India, 13
The Indian Journal of Political Science 28, 28-35 (1952).
[5] Audrey Azoulay, Re-shaping cultural policies: Advancing
creativity for development, UNESCO ( June 30, 2020, 08:30 P.M.), https://unesdoc.unesco.org/ark:/48223/pf0000260592
[6]Reitov Ole, UN Report on the right to artistic expression and creation, FREEMUSE
ARTS FREEDOM (June 30, 2020, 08:35 P.M.), https://freemuse.org/news/un-report-on-the-right-to-artistic-expression-and-creation-now-available/
[7] William
Dalrymple, A Point of View: The sacred
and sensuous in Indian Art, BBC NEWS (July 1, 2020, 11:30 A.M.), https://www.bbc.com/news/magazine-26873149
[8] Vani
Munjal, These temples in India are famous
for their erotic sculpture, CULTURE TRIP (July 1, 2020, 11:40 A.M.), https://theculturetrip.com/asia/india/articles/these-temples-in-india-are-famous-for-their-erotic-sculptures/
[9] Pallabi
Ghosal, Freedom of art under siege in
India, LEGAL SERVICES INDIA (July 1, 2020, 12:00 P.M.), http://www.legalserviceindia.com/articles/re_ind.htm
[10] J. Venkatesan, Only 3 cases are pending against Husain, THE
HINDU (July 1, 2020, 12:15 P.M.), https://www.thehindu.com/news/national/Only-3-cases-are-pending-against-Husain/article16817023.ece
[11]
R. Padmanabhan, Assault on art, 15
Frontline 9-22 (1998)
[12] Ranjit D.
Udeshi v/s State of Maharashtra, 1965 S.C.R (1) 65 (India)
[13] Roth v/s
United States, 354 U.S. 476 (1957)
[14] Chandrakant
Kalyandas Kakodkar v/s State of Maharashtra, 1970 S.C.R (2) 80 (India)
[15] Samaresh
Bose v/s Amal Mitra, 1985 S.C.R Supl. (3) 17 (India)
[16] Jacobellis
v/s Ohio, 378 U.S. 184 (1964)
[17] State of
Mississippi v/s Environmental Protection Agency, 744 Fd. 1334, 1340 (D.C. Cir. 2013) (U.S.)
[18] Karima Bennoune, Cultural Rights: Tenth Anniversary Reports, UNHRC (July 1, 2020, 09:30 P.M.), https://undocs.org/en/A/HRC/43/50
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