It has been a decade since the landmark judgment on the MF Husain row was delivered, squashing the charges under Section 292 of the Indian Penal Code(IPC), 1860. The judgment differentiated between ‘vulgarity’, ‘obscenity’ and art which actually stands for a fluid reflection of society.
Justice Sanjay Kishan Kaul’s judgment upheld the constitutional values in the strict regard of freedom of speech, which our Constitution guarantees to citizens of our nation. Justice Kaul agreed that art is a coming of age and each form of expression in art, from naturalism to abstract expressionism derives its strength from the artist’s emotional pursuits of his perceptual reality.
MF Husain Judgment: Artistic Freedom Upheld
The judgment read, “The sculpture on the earliest temples of (the) ‘Mithuna’ image or the erotic couple in Bhubneshwar, Konark and Puri in Orissa(150-1250 AD); Khajuraho in Madhya Pradesh (1000 AD); Limbojimata temple at Delmel, Mehsana(10th Century AD); Kupgallu Hill, Bellary, Madras; and Nilkanth Temple at Sunak near Baroda- these are some of many cult figures in which rituals related to Kanya and Kumari worship for progeny garnered deep connections in early century AD.”
The judgment didn’t forget to mention that “the very concept of ‘Lingam’ of the God Shiva resting in the centre of Yoni, is a representation of the act of creation, the unity of Prakriti and Purusa,” adding that:
The ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss that can be experienced only by the spirit.
Justice Kaul discussed in his order how the paintbrush – a powerful tool of expression – could be perceived by some to have crossed the Lakshman Rekha or the line of fire but, he said, what actually had to be kept in mind was that art shouldn’t be plunged into the category of forbidden defined by ‘obscene’, ‘vulgar’, ‘depraving’, ‘prurient’ and ‘immoral’.
The said ‘objectionable’ painting by Husain was advertised under the title of ‘Bharat Mata’, with which the accomplished painter had no involvement.
The ruling in the favour of Husain upheld the artistic freedom within the parameters of Article 19 of the Constitution of India, and brought out the significance of this aspect on the contours of precedents where Indian as well as international courts faced with similar situations discussed and enunciated the law in relation to obscenity.
Perumal Murugan Judgment: ‘The Choice to Read is Always With the Reader’
In the famous 2016 judgment on controversial Tamil author Perumal Murugan, who was facing charges for the vocalism he practised in his book Madhorubagan, which loosely translates into English as ‘One Part Woman’, Justice Kaul stated, “The choice to read is always with the reader. If you don’t like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary - what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.”
This lucid judgment followed Bombay High Court’s insight on controversial Udta Punjab case, and correlated the judgment on the cinematography work with books as well as paintings to allow the further publication of Murugan’s literary piece.
The aforementioned judgments discuss a wider societal canvas, counting a multi-cultural society where religious beliefs are sacred to various segments, and at the same time allow the atheists to practise their rights with a minimal element of responsibility while satisfying the touchstone of our Constitution. There is no doubt that religion is a major influence in our country but the founding fathers’ guarantee to ensure a free society is the very essence of India, which must be kept intact.
In his affidavit, Murugan wrote what he perceived to be the function of a writer:
The function of a writer is to question the social values and subject them to critical examination. He must not mechanically accept anything. The society which frames the rules also provides for exceptions. It is natural for a writer to focus his writing on the exceptions. When the society insists on the rules, the writer will highlight the exceptions. That is how it is possible to perceive things from the side of the victims. Otherwise, the case of the victim and marginalised will go unheard.
The statement highlights the contemporary practice of favouritism by state and society to undermine voices of artists, writers, actors and activists. An author writes, a painter paints and a sculptor expresses through his murals, but art can’t be judged on one arbitrary parameter like the depiction of obscenity, it has to be well-examined and digested a whole.
A piece of art is not a statute liable to instantaneous justification but something to be assessed completely before coming to a conclusion. Justice Kaul’s judgments on artistic freedom reinstated the faith of every practitioner of the right of expression in the Indian judiciary.
Kaul’s Elevation to SC and ‘The Right to Privacy’ Judgment
The cascade of human rights activism started in 2008 with his judgment on MF Husain didn’t stop even after a decade. After being elevated to the Supreme Court in 2017, it was an august day in the month of August when an SC bench, also comprising Justice Kaul, ruled a pathbreaking judgment on privacy being a fundamental right.
The bench agreed that privacy is a fundamental right intrinsic to human life, and that it establishes liberty and allows sacrosanct process of thought and so falls under Article 21 of the Constitution.
In his judgment, Justice Kaul noted that “privacy is an inherent right. It is thus not given, but already exists.”
This also opened a chain of arguments on Aadhaar profiling on which Justice Kaul ruled that the Union must ensure zero discrimination based on religion, ethnicity and caste due to such personal data profiling and there must be strong regulations on free movement of such data on accords of Regulation (European Union) 2016/679.
He added that, “Uber knows our whereabouts and the places we frequent. Facebook, at the least, knows who we are friends with. Alibaba knows our shopping habits. Airbnb knows where we are travelling to.”
However, what about the protection of our information we share with these companies? It becomes a mandatory duty now to ensure that data breach doesn’t happen.
Thus, the judgment states, there is an unprecedented need for regulation regarding the extent to which such data can be used by non-state actors, and a need for protection of such information from the state.
A Poetic, Humorous Crusader for Freedom
It is quite interesting to note a fun fact for which Justice Kaul is admired in addition to his judgments, and that is his poetic and imaginative sense, which is reflected in his judgments. The famous 2008 judgment on the MF Husain case reads Pablo Picasso’s quote on art:
Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared. Yes, art is dangerous. Where it is chaste, it is not art.
Justice Kaul, in Murugan’s case order, didn't forget to remember famous French author Voltaire. The order opens with the quote:
I may disapprove of what you say, but I will defend to the death your right to say it.
This was celebrated as an epic defence, which stole the show and sent a vibrant message across India from the aisles of law rooms.
The constitutional agreement of all democracies refers to a spirit. The spirit serves justice to all and is a living entity. The beauty of the spirit lies in its practice, it has multidimensional presence which at times echoes the dignity of statehood. The spirit embodied as Magna Carta was felt in France, America and India in their struggling years and transformed each passing day for better.
The founding fathers of our vibrant democracy drafted the Indian Constitution and gave a grand throne to the transformed Magna Carta in Part III of our Constitution. It then became an unavoidable duty for citizens to enforce the legal bindings to sustain the constitutional essence and peace keepers so emerged were our honourable judges.
The interference in legal proceedings in a big democracy like ours is probable but those who protect the basic rights of their brethren against all odds are undeniably heroes without capes. And I will do a huge injustice if I don’t count Honourable Justice Sanjay Kishan Kaul among those few heroes.
(The author is a research scholar at Department of Physics, The Maharaja Sayajirao University of Baroda and serves as an Editor to Academia.edu, WikiProjects. The views expressed above are of the author’s own and The Quint neither endorses nor is responsible for the same.)
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