Delhi High Court grants a reprieve for artistic freedom
(Written after the Delhi High Court ruling of May 2008, quashing criminal proceedings launched against M.F. Husain in various courts of the country)
Few realms of artistic or scholarly excellence were spared the fallout of India’s bitter communal polarisation of the 1990s and beyond. Circumstances were especially hazardous for artists and scholars who drew their inspiration from the rich syncretism of Indian folk traditions. And as events have proven, few were more vulnerable than Maqbool Fida Husain, whose work has been an ongoing and intense engagement with popular culture.
Whether 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 neo-nationalist zealotry, the name he bears was sufficient cause to question his entire body of work. No person whose overt social identity was quite so alien to the intrinsic and primordial cultural character of the Indian nation -- as it was then portrayed -- could be permitted the audacity to produce a body of work suffused with the iconography of the Hindu pantheon.
The epigraph to the landmark judgment by the Delhi High Court, dismissing the summons issued Husain to answer criminal charges in cases filed from literally all parts of the country, quotes the legendary Pablo Picasso on the necessarily subversive quality of art. “Art is never chaste. It ought to be forbidden to ignorant innocents, never allowed into contact with those not sufficiently prepared”.
Picasso was not, most assuredly, making a case for keeping art in sequestration from the lay public and preserving it as a domain for the specialist. That indeed, would be a spirit impossible to reconcile with his work. More particularly, it would be contrary to Husain’s own creative ethos, which as he explained in a recent interview with the weekly magazine Tehelka, is all about art for the people: “I never wanted to be clever, esoteric, abstract. I wanted to make simple statements. I wanted my canvases to have a story. I wanted my art to talk to people” (Tehelka Magazine, Vol 5, Issue 4, Dated Feb 02, 2008).
Clearly, in Husain’s creative universe, there are no ignorant or unwashed masses needing tutelage.
Ignorance perhaps is not so much the issue as the cloistered mind and a sensibility that allows finer perceptions to be overwhelmed at the slightest sniff of political opportunity.
The arguments for and against Husain have been rehearsed endlessly ever since he became the focus of Hindutva ire in the mid-1990s. That the right to free speech does not constitute the right to cause offence or to inflame social sensibilities is of course a well accepted principle of liberal jurisprudence. But when does an act cease being a rightful exercise in free speech and begin to be a provocation? Does the nude depiction of figures from a religious pantheon, in a manner that is integrally connected with classical iconographic traditions, constitute an offence to social sensibilities? Campaign groups arguing Husain’s case, seeking to end his hapless years of exile from India, have been arguing precisely that.
The riposte, as in many such matters, has come from the ideological obermeister of the Hindutva flock, Arun Shourie.
Prefacing his damning remarks with some semblance of compassion, Shourie recently wrote of Husain: “He is a kindly man, and a prodigiously productive artist. There is no warrant at all for disrupting all his exhibitions”. Indeed, Shourie allows Husain the further concession that his depictions of Hindu goddesses “in less than skimpy attire” could pass muster on grounds of sensibility and inspiration, if only it did not leave unanswered a crucial question: “How come in the seventy-five years Husain has been painting, he has not once felt inspired, not once, to paint the face of the Prophet? It doesn’t have to be in the style in which he has painted the Hindu goddesses. Why not the most beautiful, the most radiant and luminous face that he can imagine? How come he has never felt inspired to paint women revered in Islam, or in his own family, in the same style as the one that propelled his inspiration in regard to Hindu goddesses?” (Arun Shourie, “Hindutva and Radical Islam: Where the twain do meet”, The Indian Express, Delhi, Friday, December 28, 2007).
An artist in a free society is at liberty to choose the motifs that he would like to represent, the cultural lineages that he draws from, and the forms and idioms that he would like to emulate, develop and (if possible) enrich through his practice. In suggesting that Husain should have remained bound by the cultural symbols and traditions of the faith he was born into, or that in the midst of his aesthetic wanderings, he should occasionally have visited Islamic motifs, Shourie betrays a familiar, totalitarian mindset. He also dishonours Husain’s engagement with his craft and with the people of India in such epic political adventures as Rammanohar Lohia’s Ramayan Mela of the 1960s.
Besides, there is an answer to Shourie’s question that is so evident, that it could not possibly have escaped the comprehension of even one so culturally obtuse. Simply put, there is nothing like an equally vivid tradition of iconography in any other cultural tradition that Husain may have been exposed to. To hear Husain narrate the story of his early years as an artist of the people is to realise how deep has been his empathy with the diverse folk traditions of the country. “In 1948”, he recalls in the recent interview, “I exhibited my work publicly for the first time in the Bombay Arts Society show. I had already been painting and practising for years. .. I took the classical images of the Gupta bronzes -- the tribhanga form; the sensuous and erotic colours of Pahari paintings -- its deep maroons, blacks, haldi; and the nine rasas. I wanted my format to be classical, yet retain the innocence of the folk. (Francis) Souza came and asked me excitedly, from where have you got this? I didn’t tell him, I said, you go search it. This is what lies at the heart of the artistic enterprise. .... It is in picking from what has gone before. In India, there have been so many high periods -- Tanjore, Chola, Gupta… Centuries of seeing lie behind that. You cannot reinvent the wheel -- your individuality, your creative eye lies in what you pick”.
But wait, the moral precept of Hindutva is as Shourie very lucidly explains, “deceit towards the deceitful” and “wickedness towards the wicked”. The practical implications of this moral symmetry are clear. If Muslims have the liberty to engage in street protests and demand the withdrawal of cartoons denigrating the prophet of their faith, Hindus enjoy a like privilege.
Muslims worldwide mobilised in February 2006 against a Danish newspaper’s deliberately provocative publication of a series of cartoons representing the figure of the prophet of Islam as an accomplice in terrorism. Far from being an exercise in the right to free speech, the Danish newspaper was by its own boastful claim, engaged in an effort to rub in the superiority of western culture. Clearly, this was the ideological or unarmed component of the “global war on terror” that was then ostensibly being waged between the forces of civilisation and barbarism.
A key issue that emerged from the controversy was that of intent. In all such matters involving rival perceptions of the right to free speech and expression, intent matters. The Danish newspaper had made no secret of its intent to cause offence.
Husain in contrast has never had any intent except to connect to the people in a purely aesthetic form.
Another implication of Shourie’s moral symmetry was laid out by a spokesman for Hindutva, who reacted in fury to the industrialist Vinay Bharat Ram’s defence of Husain. Would “pseudo-secular intellectuals”, asked the agitated propagandist for Hindutva, show the same “breadth of vision and understanding towards the work of an unknown Hindu artist called Kailash Tewari from Bhopal”. This unknown hero, it transpires, was in June 2007, asked to take down an exhibition for its inflammatory representations of the people of another faith. Asked about the incident, the aggrieved painter argued: “My exhibition titled The Face of Terror depicts the truth. I am not talking about Muslims, but unfortunately all terrorists turn out to be Muslims”. (This specific link is available at http://www.ivarta.com/columns/070625-mf-hussen-paintings.htm; it can also be accessed through the website set up by body of non-resident Indians, with the specific intent of taking down M.F. Husain: http://www.hindujagruti.org/activities/campaigns/national/mfhussain-campaign/)
Thus the many hued richness of Husain’s work, with its characteristic imprint of playfulness, its homage to diverse traditions, and its signature qualities, which are now perhaps the most widely recognised in Indian art, is equated on a moral plane, with the output of a paintbrush hack with political motivations and abundant reserves of social bigotry. It could be said that this is the reductio ad absurdum of Hindutva aesthetics.
The judgment of the Delhi High Court, delivered May 8, 2008 by Justice Sanjay Kishan Kaul, in the matter of Maqbool Fida Husain versus others, dismissing the summons issued Husain in a diverse number of cases filed by individual litigants, is valuable in bringing the focus back on intent and dispelling several of these absurd moral equivalences. There were two grounds on which the petitioners from places as far afield as Pandharpur (Husain’s home village in Maharashtra), Bhopal and Delhi, had filed petitions for the criminal prosecution of 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.
Since “intent” is the point under discussion, it might be good 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, the 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 judgment: “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 as also that to hold a person liable under the above said section, mere knowledge of the likelihood that the religious feelings of another person may be wounded would not be sufficient.”
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 that “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 to strict punishment.
Within this strict standard though, Justice Kaul points out in paragraph 70 of his landmark judgment, 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 legal test of obscenity is satisfied only when the impugned art/matter can be said to appeal to an unhealthy, inordinate person having perverted interest in sexual matters or having a tendency to morally corrupt and debase persons likely to come in contact with the impugned art”.
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. But where Justice Kaul perhaps makes his most significant jurisprudential breakthrough for this age of the worldwide web, the internet and all its possibilities of instant communications, is in the matter of jurisdiction. 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 that 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.