Recently I was drawn to a very unconventional case.
It had been reported in the papers, that a young mother allegedly in the spirit of activism had decided to permit her underage children to paint on her naked upper body, She had been charged with obscenity and different provisions of other penal acts, and was seeking bail. The reason the case intrigued me was that it related to a conflict that is almost as old as our Republic. I have insufficient knowledge of the case at hand and it would be improper for me to comment on the merits of the same, however, I did feel the need to trace out this conflict between obscenity, art, and law.
At what juncture does art become obscene? Where lies the cardinal line where an artist’s self-expression crosses over to vulgarity, and can indecency and lewdness actually be art in itself?
A look at the history of the conflict shows that the same has developed in tandem to a rediscovery of our own cultural traditions and ethos. Over time, our courts have gone from protecting what it perceived as a nascent and seemingly naive demographic, which may be polluted or corrupted from interaction with any semblance of ‘the erotic’ to being vanguards of free expression and art even when the same delves into the realm of eroticism.
The first case can be traced back to the book Lady Chatterley’s Lover by D.H Lawrance. The storyline of the book, in its simplest form, traces out the life of an English baron and his wife Constance. The baron being paralysed from the waist down and having sensed sexual frustration in his wife permits her to take on lovers. The book traces her encounter with two men one ‘Michaelis’ and later with gamekeeper ‘Mellors’. The description of their encounters is vivid.
Four partners of the establishment that sold the book were charged and convicted of obscenity. The High Court maintained the conviction and it was on 19th August 1964 in our fourteenth year as a republic a constitution bench of the Supreme Court delivered judgment in the case of ‘Ranjit D Udeshi v. State of Maharastra’. The prosecution in the case had relied on admitted facts namely the possession and sale of the book, the defense had relied mainly on evidence given by the writer, Mulk Raj Anand who had expounded the view that the book in question was a literary masterpiece and when viewed as a whole could not be considered obscene. The trial court had disbelieved Mr. Anand’s testimony and had convicted the accused. The conviction had been maintained by the High Court. The Supreme Court negated a challenge to the constitutionality of S. 262 IPC, holding that Art 19 which guaranteed freedom of expression itself carried in clause (2) an exception against public morality. The essence of the dilemma facing the court can be seen in paragraph 16 of the judgment: the court acknowledges the difference in perception between those the court calls ‘the insensitive’ and those identified as ‘the intellectual’ the court notes:
"The laying down of the true test is not rendered any the easier because art has such varied facets and such individualistic appeals that in the same object the insensitive sees only obscenity because his attention is arrested, not by the general or artistic appeal or message which he cannot comprehend, but by what he can see, and the intellectual sees beauty and art but nothing gross."
The court, in this case, recounted and ratified the English test for obscenity ‘the Hicklin Test’: which may be summed up in the words of the judgments of author Lord Cockburn.
"I think the test for obscenity is this, whether the tendency of the matter, charged as obscenity is to deprave and corrupt those whose minds are open to such immoral influences, and into whose hands a publication of this sort may fall ... it is quite certain that it would suggest to the minds of the young of either sex or even to persons of more advanced years, thoughts of a most impure and libidinous character."
The court thereafter discussed whether the book Lady Chatterley’s Lover could be termed as obscene. The court goes on to analyze the rationale behind the work. Recording the authors' constant struggle with the censors of the time and his intention of bringing sexual relationships out of societal taboo into the open.
In the end, however, the court upheld the order and the book in question remains banned in the country. The court’s rationale in labeling the book obscene stemmed from its reasoning that while interpreting obscenity laws it is the law’s responsibility to shield a section of the society that for reasons have no defence against salacious writing holding thus "...The law seeks to protect not those who can protect themselves but those whose prurient minds take delight and secret sexual pleasure from erotic writings." It went on to hold that the material at hand was outside the permissible limits of the community standards of the time and that little loss would incur if the country was denied the benefit of the same. The court further held that obscenity, may at times, be permitted if the overall social good from the material outstripped its obscene character. This, it said, was not found to be in the present case.
Our second case where Indian obscenity laws conflicted with artistic impressions happened in 1969 in the case was titled ‘Shri Chandarkant Kalyandas Kakodkar v. The State of Maharashtra and Ors’.
A Marathi magazine called Rambha carried a short story- Shama. The said story offended the sensibilities of the complainant, a reader of the magazine who brought forth obscenity charges against the writer and publishers. The charges of obscenity put forth were rejected by the magistrate’s court but were later accepted by the High Court which held the accused guilty and further ordered the destruction of all remaining versions of the particular issue of the magazinẹ.
The story -Shama- traced the life of the protagonist, Nishikant, and his relations with three distinct women. First with Neela, the daughter of a distant maternal cousin. The two fall in love but Nishikant’s offer of marriage is rejected by Neela’s father. In the time between the rejection and Neela’s father’s arrival to fetch her, the two engage in a sexual culmination of their love. The second relationship is with Vanita who is described in the story as an "...oversexed woman, experienced and forward". The story traces out their affair and the revelation that the protagonist is not her only lover. This comes in the form of his discovering Vanita's nude on the bed moments after a sexual rendezvous. The third encounter is with Shama, a colleague of the protagonist. The story traces their affair and Shama’s rise as a singer, it shows her initial preoccupation with status and wealth before her cathartic realization of Nishikant’s true love for her and her appreciation of his humbleness.
The court in this reviewed the material at hand and found no merit in the High Court's assessment that the same was obscene. With regards to the issue of premarital sex the court applied the tests laid down in the ‘Udeshi” judgment and discerned that the same was not hit by the Hicklin Test when tailored to Indian culture and cultural sensibilities of the time.
It’s important to understand that the end of the 1960s saw a discernible consensus emerge with regards to obscenity law. In the clash between freedom of expression and obscenity, it emerged that courts sided with the essence of the Hicklin Test. Another theme that comes across is a type of tacit acknowledgment with regard to cultural maturity.
The courts in both judgments refer to the idea of cultural sensibilities, holding that what may be deemed art in one culture could very well be deemed as obscene in another. The decisions however at their very basic were still distilled on individual facts. What was lacking though was discussions on how cultural maturity was to be gauged. Do we gauge the same by taking into account the pre-colonial culture of the subcontinent or do we look at it from the narrow confines of common law puritanical prisms of virtue and morality?
On 24th September 1970, the court was asked to rule directly on the conflict between what the petitioner saw as his fundamental right to self-expression and censorship, which the state maintained was a constitutionally mandated requirement. In K. A Abbas v. Union of India, the petitioner Mr. Abbas challenged the provisions relating to censorship of films in the Cinematograph Act of 1952. The petition arose out of his inability to get certification for an unrestricted exhibition of his film ‘A tale of Four cities’- A short film which highlighted unequal wealth distribution in the country. A particular sequence which later was one of the reasons cited to withhold certification contained shots from the red light district, there were blurry images of women in knee-length skirts and a particular scene wherein the woman’s hand (purported to that of a sex workes) extends out of a window in order to give the days proceeds to her manager.
The petitioner in this case challenged the vires of the provisions of censorship, claiming that pre-censorship ie the act of certification before release was violative of his fundamental rights of self-expression. The court negated the said argument. Holding that Art 19 which guarantees the right to expression in clause (2) itself contained an exception providing for restrictions with regards to public order, decency and morality. The case again referred to the earlier ‘Udeshi’ case and reaffirmed the principle that it was the state’s responsibility to save sections of the society from material that were deemed obscene. While referring to censorship the court however does caution stating:
"Our standards must be so framed that we are not reduced to a level where the protection of the least capable and most depraved amongst us determines what the morally healthy cannot view or read....If the depraved begins to see in these things more than what an average person would, in much the same way, as it is wrongly said, a frenchman sees a woman’s legs in everything, it cannot be helped. In our scheme of things ideas having redeeming social or artistic value must also have importance and protection for their growth. Sex and obscenity are not always synonamus and it is wrong to classify sex as essentially obscene or even indecent or immoral."
The 1980s placed this conflict before one of our country's most revered and revolutionary judges: Justice Krishna Iyer. Iyer is the only apex court judge to have been imprisoned by the government itself, a fascinating story but alas, one for another time. In the judgment in ‘Raj Kapoor v. State’, Justice Iyer quashed the pro bono public prosecution launched concerning the movie Satyam, Shivam Sundram. This is what he held:
"Surely the satwa of society must raise progressively if mankind is to move towards its timeless destiny and this can be guaranteed only if the ultimate value vision is rooted in the unchanging basics, Truth- goodness- Beauty, Satyam, Shivam, Sundram. The relation between Reality and Relativity must haunt the court’s evaluation of obscenity, expressed in society’s pervasive humanity, not law’s penal prescriptions. Social scientists and spiritual scientists will broadly agree that man lives not alone by mystic squints, ascetic chants and austere abnegation but by luscious love of beauty, sensuous joy of companionship and moderate non denial of normal demands of the flesh."
The 1980s also saw judgments in Samaresh Bose v. Amal Mitra, a case wherein obscenity charges had been brought out against a novel titled Prajapati and State of Bihar v. Shailabala Devi. Both cases held that the mere presence of descriptions and words that some may find offensive would not make the work obscene. The work must be read as a whole and the court must be mindful of the object sought to be achieved by said words or descriptions.
The understanding moulded by J. Iyer was furthered in the 1990s where interestingly underlying principles of the Udeshi and Abbas cases were used as shields rather than swords to protect artistic self-expression.
In the case of Bobby Art International. Etc vs Om Pal Singh Hoon decided on 1st May 1996, the Apex court considered the issue of certification granted to the movie Bandit Queen. The movie portrayed the life of Smt. Phoolan Devi, the horrors she faced as a child and how she was raised as a bandit as a countermeasure to the tribulations. The issue at hand was restricted to one scene of frontal nudity, which captured the instance when the protagonist was raped and made to draw water from a village well while being nude, one scene depicting the rape of the protagonist in which a man’s bare posterior was shown thrusting on the scene for 20 seconds and lastly the use of expletives used in the movie.
What was worth noting, in this case, is that the movie had been cleared by the tribunal created under the Cinematographers Act, before the litigation was initiated. The tribunal in this case had come to the conclusion that the graphic scenes of sexual violence were necessary to the core format of the movie, they depicted real-life occurrences and served as a pictorial representation of the suffering and humiliation suffered by the protagonist. The scenes also served as catalysts to evoke feelings of sympathy and disgust from the audience towards the protagonist and the villains. Litigation started when an audience member approached the High Court of Delhi, seeking a revocation of the film’s certification.
The High Court single bench in turn agreed with the proposition of the petitioners and revoked the film’s certification. On appeal, the Division bench of the High Court also affirmed the Single bench’s order holding amongst other that the frontal nude scene of the protagonist was indecent and should be removed, the rape scene with the naked posterior was timed by the High Court to run for 2 minutes and was termed as 'disgusting' and 'revolting'. The Supreme Court before holding on merits recounted the development of obscenity laws in India. It referred to the findings and guidelines of ‘Udeshi’ and ‘K. Abbas ’ on the scope of obscenity and censorship and used them to justify the portrayals mentioned above. The Supreme court while quashing the judgment of the High Court and reinstating the tribunal's clearance held that the scene showing frontal nudity was necessary to portray the story of the protagonist. The revulsion caused by the scene in the audience was not at the protagonist’s nudity but rather at the heartlessness of those who stripped her naked to rob her of every shred of dignity. With reference to the rape scene, the court held that the bouncing posterior of the rapist is meant to show the crudity and cruelty of rape. They held categorically that "...tears are a likely reaction: pity, horror and fellow feeling of shame are certain, except in the pervert who might be aroused. We do not censure to protect the pervert or to assuage the susceptibilities of the over-sensitive". The theme of the judgment is captured in the following line written in its conclusion "...A film that illustrates the consequences of a social evil necessarily must show that social evil".
The new millennium brought about a further radical reinterpretation of pre-existing principles. It also set the stage for the trial of one of India’s best-known painters. The case of Maqbool Fida Husain vs Raj Kumar Pandey was decided on 8th May 2008 by the Delhi High Court. The case challenged a summoning order issued by a magistrate’s court. The center of the controversy was a painting titled ‘Bharat Mata’, it depicted India in abstract form: a woman in the nude, with her hair flowing in the form of the Himalayas displaying her agony. The court begun the judgment by noting the issue of harassment famed by multiple artists on the subject of nude paintings, it reiterates the earlier principles holding that in many cases, the subject matter contains nudity not for sensational reasons but rather as a medium to convey a deeper meaning.
The court thereafter reiterated obscenity law as it exists in major countries around the world and further referred to its development in India. It reiterated the principles discussed above: the Hicklin Test as affirmed in ‘Udeshi’s’ case, the guidelines towards censorship as given in ‘Abbas’s’ case, the principle of contemporary standards, and the rest. While quashing the summonses and exonerating the artist, the court amongst other rationales, discussed India’s cultural standing and how eroticism, sexual allusion, and symbolism were used in our historic literature and writings. The court concluded that from a historic perspective a highly secular and open interpretation had been given to the said issues, it held:
"We have been called as the land of the Kama Sutra then why is it that in the land of the Kama Sutra, we shy away from its very name? Beauty lies in the eyes of the beholder and so does obscenity. It is our perception to objects, thoughts and situations, which rule the mind to perceive them in the way we do. Way back then, perhaps it would not be wrong to assume that the people led exotic lives dedicated to sensuality in all its forms. It was healthy and artistic. They studied sex, practiced sex, shared techniques with friends, and passed on their secrets to the next generation. All in good spirit. Sexual pleasure was not behind closed doors or a taboo; it was in the air in different forms. There was painting, sculpture, poetry, dance and many more. Sex was embraced as an integral part of a full and complete life. It is most unfortunate that India's new 'puritanism' is being carried out in the name of cultural purity and a host of ignorant people are vandalizing art and pushing us towards a pre-renaissance era."
All of these cases represent artworks that have at their relevant times pushed the boundaries of acceptance, they are however by no stretch of the imagination some total of instances where obscenity laws and art have interacted. However, all of them are connected by one thread: They depict a rough outline of the voyage that art and self-expression have taken in the 80 years of our republic.
The simplest takeaway from the said cases is that the court decides obscenity after gauging the material against present cultural norms. Right from the ‘Udeshi’ case where the argument raised by Mulk Raj Anand that the description of sexual encounters was integral for plot development the novel was termed obscene as it was held to be incompatible by cultural norms prevalent in 1960s India to ‘Bobby Art’ international wherein the court held that Indian Society in the 1990s was mature and discerning enough to grasp the reasons for their being nude scenes in the movie bandit queen. It will be observed that throughout its journey the touchstone for gauging obscenity theoretically has remained the same-- the ‘Hicklin Test’, cultural compatibility, context and overall social good. What has changed over the years is contemporary society and to an extent the court's understanding of the same.
Another factor that jumps out at me is the fact that in 1960 the court had devised the principle of cultural compatibility of the material and society, yet it was not until 2008 that Justice Kaul addressed the issue of what Indian culture actually embodied. In order to gauge obscenity do we restrict our culture to what it was post 200 years of colonization, influenced as it was heavily by Western ideals of morality or do we look back into the past, at the pre colonized subcontinent and let that also be a factor in gauging the obscenity value of what is presented as art? I feel that it was only in the ‘M. F Hussain Judgement’ that the court actually confronts the issue decisively with examples of the temples of Khajuraho and the Kamasutra.
The judgments in ‘Udeshi’ with which I began this piece come to a full circle with Hussain's case for the journey doesn't only represent the evolution of law but it reveals that a degree of decolonization where the courts finally looks at cultural perceptions and development in its entirety, and not in the restricted colonised sense.