The ruling of May 8, 2008, brought to a close a particularly nauseating moment in contemporary Indian history where forces of the Sangh Parivar foisted illiterate, ignorant and inflammatory charges upon an isolated artist with the deliberate intent of paralysing him. Caught between daily threats to his life and freedom and an impotent State unable to guarantee him protection, Husain has been living abroad, in self-imposed exile, for close to two years now.
No wonder Justice Sanjay Kishan Kaul chose to conclude his judgment with the evocative passage: "I have penned down this judgment with this 'favourent' hope that it is a prologue to a broader thinking and greater tolerance for the creative field. A painter at 90 deserves to be in his home -- painting his canvass."
The full text of the 74-page judgment is an outstanding feat of original jurisprudence and I find it nothing short of criminal that the Indian media as a whole has chosen to completely ignore it and gloss over the possibility of it emerging as a new case law that, in the long run, strengthens the hands of the media too in the domain of freedom of expression. Either they have not understood or they just don't care. I hope the former is true.
The artists' community too has not responded, has not seen the urgent importance of this judgment, and are neither discussing nor celebrating it. Surely we are living in strange times when people fail to recognise something revolutionary happening in front of their eyes.
There, perhaps, has been no judgment delivered in Indian courts that has such an auspicious opening. Justice Kaul's opening para reads: "Pablo Picasso, a renowned artist said, '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." This is unprecedented. No modern judgment pertaining to artistic freedom has ever quoted an artist or has been so categorical.
Justice Kaul goes on to define the nature of the complaint brought against Husain and his painting titled (not by him) 'Bharat Mata', which led to private complaints being filed against him from different places in Maharashtra, Gujarat and Madhya Pradesh, leading to summons and arrest warrants against Husain. The artist appealed to the Supreme Court, which in turn, directed the case to the Delhi high court.
Running through case laws pertaining to obscenity from the juridical history of the USA, Canada, Australia and the UK, Justice Kaul says, "Art and authority have never had a difficult relationship until recently Therefore, looking at a piece of art from the painters' perspective becomes very important especially in the context of nudes. What needs to be seen is that the work is not sensational for the sake of being so and hence needs to be understood before any objections are raised "
The judge, in particular, cites the famous 1868 English case Regina v Hicklin, which came to be known as Hicklin's test. It set an early precedent for obscenity. Hicklin's rule allowed a publication to be judged for obscenity based on isolated passages of a work considered out of context and judged by their apparent influence on most susceptible readers, such as children or weak-minded adults.
The judge quotes the Indian Supreme Court's observations in the 1970 KA Abbas vs Union of India case: "Our standards must be so framed that we are not reduced to a level where the protection of the least capable and the most depraved amongst us determines what the morally healthy cannot view or read The requirements of art and literature include within themselves a comprehensive view of social life and not only in its ideal form, and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value. 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," something endorsed by the 1996 Supreme Court ruling on the film Bandit Queen.
Pooh-poohing the fears of counsel for the respondents, he makes a crucial assertion, "It seems the complainants are not the types who would go to art galleries or have an interest in contemporary art, because if they did, they would know that there are many other artists who embrace nudity as part of their contemporary art 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 vandalising art and pushing us towards a pre-renaissance era."
In an illuminating conclusion, Justice Kaul maintains, "Pluralism is the soul of democracy. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends."
You can read Justice Sanjay Kishan Kaul's path-breaking judgment here