Maqbool Fida Husain vs Raj Kumar Pandey [Along With Crl. ... on 8 May, 2008
Loading...
Delhi High Court
Bench: S K Kaul
Maqbool Fida Husain vs Raj Kumar Pandey
[Along With Crl. Revision Petition Nos. 280 And 282/2007] on 8/5/2008
JUDGMENT
Sanjay Kishan Kaul, J.
1. 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."
2. Art, to every artist, is a vehicle for personal expression. An aesthetic
work of art has the vigour to connect to an individual sensory, emotionally,
mentally and spiritually. With a 5000-year-old culture, Indian Art has been rich
in its tapestry of ancient heritage right from the medieval times to the
contemporary art adorned today with each painting having a story to narrate.
3. Ancient Indian art has been never devoid of eroticism where sex worship
and graphical representation of the union between man and woman has been a
recurring feature.1 The sculpture on the earliest temples of 'Mithuna' image or
the erotic couple in Bhubeneshwar, Konarak and Puri in Orissa (150-1250 AD);
Khajuraho in Madhya Pradesh (900-1050 AD); Limbojimata temple at Delmel, Mehsana
(10th Century AD); Kupgallu Hill, Bellary, Madras; and Nilkantha temple at Sunak
near Baroda to name a few. These and many other figures are taken as cult
figures in which rituals related to Kanya and Kumari worship for progeny gained
deep roots in early century A.D. Even the very concept of 'Lingam' of the God
Shiva resting in the centre of the Yoni, is in a way representation of the act
of creation, the union of Prakriti and Purusua.2 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.
4. Today Indian art is confidently coming of age. Every form of stylistic
expression in the visual arts, from naturalism to abstract expressionism derives
its power from the artist's emotional connection to his perceptual reality. The
Nude in contemporary art, a perennial art subject, considered to be the greatest
challenges in art has still not lost its charm and focuses on how the human form
has been re-interpreted by the emerging and influential artists today. The
paintbrush has become a powerful tool of expression as the pen is for some, and
has thus occasionally come under the line of fire for having crossed the
'Lakshman Rekha' and for plunging into the forbidden, which is called 'obscene',
'vulgar', 'depraving', 'prurient' and 'immoral'.3 No doubt this form of art is a
reflection of a very alluring concept of beauty and there is certainly something
more to it than pearly 'flesh'4 but what needs to be determined is which art
falls under the latter category.
5. The present petitions seeking to challenge the summoning orders against
the petitioner arise from such a contemporary painting celebrating nudity made
by an accomplished painter/petitioner. The said painting depicts India in an
abstract and graphical representation of a woman in nude with her hair flowing
in the form of Himalayas displaying her agony. It is stated that the said
painting was sold to a private collector in the year 2004 and that the
petitioner did not deal with the same in any manner whatsoever after sale.
Subsequently in the year 2006, the said painting entitled "Bharat Mata" was
advertised as part of an on-line auction for charity for Kashmir earthquake
victims organized by a non-governmental organisation with which the petitioner
claims to have no involvement. It is stated that the petitioner at no point in
time had given a title to the said painting. The advertisement of the said
painting led to large scale protests for which the petitioner also had to tender
an apology.
6. It is in this background that there were private complaints filed at
various parts of the country being Pandharpur, Maharashtra; Rajkot, Gujarat;
Indore and Bhopal, Madhya Pradesh alleging various offences against the
petitioner on account of the aforesaid painting consequent whereto summons and
warrants of arrest were issued against the petitioner. The petitioner approached
the Supreme Court seeking consolidation of the matter. The Supreme Court acceded
to the request and in pursuance to the directions passed vide order dated
04-12-2006, the said complaint cases pending consideration were consolidated and
transferred to the court of the Ld. ACMM, Delhi by way of transfer petitions
filed by the petitioner being T.P. (Cri.) No. 129/2006, T.P. (Cri.) No. 182/2006
and T.P. (Cri.) No. 224/2006. The Ld. ACMM, Delhi issued summons to the
petitioner for various offences Under Section 292/294/298 of the Indian Penal
Code ('IPC' for short) against which the present revision petitions have been
filed.
7. Notices were issued by this Court and exemption was granted to the
petitioner from personal appearance. In view of certain propositions having
arisen, this Court deemed it appropriate to issue court notice to the Ld.
Attorney General in order to depute a law officer for assistance to this Court.
A perusal of the order sheets shows that none had sought to appear and argue the
matter for the respondents in Crl. Rev. P. 114/2007 and Crl. Rev. P. 280/2007,
thus this Court vide order dated 20-03-2008 closed the right of the said
respondents to advance any further submissions. However, the GPA holder of the
respondent in Crl. Rev. P. 280/2007 entered appearance on 31-03-2008 and
requested to make further submissions in that behalf which was permitted.
8. India has embraced different eras and civilizations which have given her a
colour of mystery and transformed into her glorious past adapting various
cultures and art forms. In the Mughal period too one may see murals and
miniatures depicting mating couples. That has been the beauty of our land. Art
and authority have never had a difficult relationship until recently. In fact,
art and artists used to be patronized by various kings and the elite class. It
is very unfortunate that the works of many artists today who have tried to play
around with nudity have come under scrutiny and have had to face the music which
has definitely made the artists to think twice before exhibiting their work of
art. 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 courts have been grappling with
the problem of balancing the individuals' right to speech and expression and the
frontiers of exercising that right. The aim has been to arrive at a decision
that would protect the "quality of life" without making "closed mind" a
principal feature of an open society or an unwilling recipient of information
the arbiter to veto or restrict freedom of speech and expression.
9. In order to examine the matter closely it would be pertinent to discuss
the broad realms of the law relating to obscenity and the artistic freedom given
within the parameters of Article 19 of the Constitution of India (hereinafter
referred to as the Constitution). The learned Counsel for the petitioner and the
Ld. ASG have assisted this Court to bring to light this aspect by way of a
plethora of precedents (Indian as well as international) where the courts faced
with similar situations have discussed and enunciated the law in relation to
obscenity. The position in this respect is summarized below:
United States of America
10. The courts in United States of America have given primary importance to
protect the freedom guaranteed by the First Amendment to the American
Constitution wherein an absolute prohibition is imposed on the abridgment of
freedom of speech thus casting a heavy burden on anyone transgressing the right
to justify the transgression. Since the constitutional provision contained no
exceptions, these had to be evolved by judicial decisions.
11. It was in the case of Chaplinsky v. New Hampshire 315 U.S. 568, wherein
the Courts recognized "obscenity" as an exception to an absolute freedom
guaranteed by the American Constitution. In Roth v. United States 354 U.S. 476
the Supreme Court directly dealt with the issue of "obscenity" as an exception
to freedom of speech and expression. It delved into the constitutionality of 18
U.S.C 1461 that made punishable the mailing of any material which was "obscene,
lascivious, lewd or filthy and other publication of an indecent character".
While upholding the constitutional validity of the above Code the Court observed
that "obscenity is not within the area of constitutionally protected freedom of
speech or press - either (1) under the First Amendment, as to the Federal
Government, or (2) under the Due Process Clause of the Fourteenth Amendment, as
to the States". The Court further held that the rejection of "obscenity" was
implicit in the First Amendment. Sex and Obscenity were held not to be
synonymous with each other. Only those sex-related materials which had the
tendency of "exciting lustful thoughts" were held to be obscene. The aspect of
obscenity had to be judged from the point of view of an average person by
applying contemporary community standards.
12. In this case the Supreme Court also rejected the common law test evolved
in England in the case of Regina v. Hicklin 1868. L. R. 3 Q. B. 360 of the
material having the tendency to deprave and corrupt the minds of only those
persons who are open to such immoral influence, and into whose hands the
publication of this sort may fall. The Supreme Court observed as follows:
The Hicklin test, judging obscenity by the effect of isolated passages upon
the most susceptible persons, might well encompass material legitimately
treating with sex, and so it must be rejected as unconstitutionally restrictive
of the freedoms of speech and press. On the other hand, the substituted standard
provides safeguards adequate to withstand the charge of constitutional
infirmity.
13. The Supreme Court in the case of Memoirs v. Massasuchette 383 U.S. 413
further explained the meaning of the term "obscenity" in the following words:
Under this definition, as elaborated in subsequent cases, three elements
must coalesce: it must be established that (a) the dominant theme of the
material taken as a whole appeals to a prurient interest in sex; (b) the
material is patently offensive because it affronts contemporary community
standards relating to the description or representation of sexual matters; and
(c) the material is utterly without redeeming social value.
14. The California Penal Code was approximately based on the above test,
under the terms of which an intentional distribution of obscene matter was an
offence. In Miller v. California 413 U.S. 15, the test of "utterly without
redeeming social value" was rejected. This was a case involving an aggressive
sales campaign relating to a book containing sexually explicit material which
came to be thrusted upon people who had expressed no desire to receive them. It
was observed that the court has recognized that the States have a legitimate
interest in prohibiting dissemination or exhibition of obscene material when the
mode of dissemination carries with it a significant danger of offending the
sensibilities of unwilling recipients or of exposure to juveniles.
15. In Stanley v. Georgia 394 U.S 557, the Supreme Court of United States
dealt with another issue related to "obscenity" which concerned private
possession of obscene material by the Appellant which was an offense under the
law of Georgia. The Court in this case held that mere possession of the obscene
material was not a crime. In doing so, the Court did not hold that obscene
material had become a "protected speech", rather, the Court recognized that the
freedom of speech goes beyond self-expression and includes the fundamental right
to "receive information and ideas regardless of their social worth."
16. In Mishkin v. New York 383 U.S 502 the Court removed the test of the
average person by saying that if the material is designed for a deviant sexual
group, the material can be censored only if it appeals to the prurient interest
in sex of the members of that group when taken as a whole.
17. The United States of America has recently enacted a statute regulating
obscenity on the internet i.e. Communication Decency Act, 1996 (CDA) which
prohibits, knowingly sending or displaying of "patently offensive" material
depicting or describing sexual or excretory activities or organs, in any manner
that is available to a person under 18 years of age using an "interactive
computer service". The constitutionality of this statute came to be challenged
before the Supreme Court in the case of Reno v. ACLU 117 S. Ct. 2329 (1997)
wherein it was argued that the aim of the Government while enacted the said
statute was protecting the children from harmful material. The Supreme Court
observed that the words of the statute were vague and uncertain. It further held
that the provisions of CDA lacked the precision that the First Amendment
requires when a statute regulates the content of speech. The governments'
interest in protecting children from exposure to harmful material was held not
to justify "an unnecessarily broad suppression of speech addressed to adults".
The court observed that the undefined terms "patently offensive" and "indecent"
were wide enough to cover large amounts of non-pornographic material with
serious educational value. In relation to the internet the "community standards"
criterion was held to mean that any communication available to a nation wide
audience will be judged by the standards of the community most likely to be
offended by the message, though in the case of New York v. Ferber 458 U.S 747
child pornography was recognized as an exception to freedom of speech guaranteed
under the American Constitution.
Canada
18. For quite some time, the Canadian courts followed the Hicklin's Test but
with the introduction of the statutory provision of Section 163(8) in the
Criminal Code, the said test was replaced with a series of rules developed by
the courts. The Canadian Criminal Code defines obscene material as any
publication a dominant characteristic of which is the undue exploitation of sex,
or of sex and any one or more of the following subjects, namely, crime, horror,
cruelty and violence, shall be deemed to be obscene. The first case to consider
the said provision was Brodie v. The Queen [1962] S.C.R. 681. The majority found
in that case that D.H.Lawrence's novel, Lady Chatterley's Lover, was not obscene
within the meaning of the Code.
19. One of the most progressive and liberal judgments on obscenity was Regina
v. Butler (1992) 1 SCR 452 by the Supreme Court of Canada. The Supreme Court of
Canada extensively interpreted the meaning of "undue exploitation, holding that
the dominant test is a community standard one. The portrayal of sex coupled with
violence will almost always constitute the undue exploitation of sex. Explicit
sex, which is degrading or dehumanizing may be undue if the risk of harm is
substantial. Finally, explicit sex that is not violent and neither degrading nor
dehumanizing is generally tolerated in our society and will not qualify as the
undue exploitation of sex unless it employs children in its production. In order
for the work or material to qualify as 'obscene' the exploitation of sex must
only be its dominant characteristic, but such exploitation must be 'undue'. In
determining when exploitation of sex will be 'undue', the courts formulated a
workable test. The test being the 'community standard of tolerance' test. It was
further observed that the State could not restrict expression simply because it
was distasteful or did not accord with dominant conceptions of what was
appropriate. In Towne Cinema Theatres Ltd. v. The Queen [1985] 1 S.C.R. 494 the
court elaborated the the community standards test and held that it is the
standard of tolerance, not taste that is relevant. What matters is not what
Canadians think is right for themselves to see (but) what the community would
(not) tolerate others being exposed to on the basis of the degree of harm that
may flow from such exposure. In R v. Dominion News & Gifts 1963. 2 C.C.C. 103.,
the court stated that the community standard test must necessarily respond to
changing mores.
Australia
20. There is no express right to free speech in Australia as in the USA. At
most, Australia has a limited implied constitutional guarantee of political
discussion. The right of free artistic expression in Australia is constrained by
defamation law; trade practices laws; the provisions as per the Online Services
Act and various State and Territory obscenity laws in particular the state
Summary Offences Acts which create offences related to the display of indecent,
obscene or offensive material. Definitions of 'obscene' or 'indecent' are often
not contained in the legislation and courts rely on traditional legal tests such
as the capacity of the material to 'deprave and corrupt' and/or community
standards.
21. Justice Windeyer settled the test for obscenity in Australia in Crowe v.
Graham (1968) 121 CLR 375.
Does the publication...transgress the generally accepted bounds of decency?
...where "[c]ontemporary standards are those currently accepted by the
Australian community.... And community standards are those which ordinary
decent-minded people accept.
22. It is well established that this community standards test will be applied
to sexual, violent, criminal and certain religious matters. These are the very
concepts often explored in art. The courts while answering the question in
particular cases relating to visual art and obscenity as to whether the artwork
offends contemporary community standards have taken in consideration the
following factors into account: the circumstances of the artwork's publication
(including any evidence of its limited circulation); the target group of the
publication (including whether the target audience was narrowed physically or by
appropriate warning signs about the content of the artwork); and whether or not
the artwork has artistic merit (taking into account any expert evidence on this
point). There is not, however, any absolute or partial defense of artistic
merit.
United Kingdom
23. Under the Common Law, obscenity being an indictable offense is punishable
with fine and imprisonment at the discretion of the court. The offence of
obscenity was established in England three hundred years ago, when Sir Charles
Sedley exposed his person to the public gaze on the balcony of a tavern.
Obscenity in books, however, was punishable only before the spiritual courts as
was held in 1708 in which year Queen v. Read 11 Mod 205 Q.B. came to be decided.
In 1857, Lord Campbell enacted the first legislative measure against obscene
books etc. and his successor in the office of Chief Justice interpreted his
statute in Regina v. Hicklin (Supra) where it was held as follows:
The test of obscenity is 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.
24. This came to be known as the Hicklins test. It set an early precedent for
obscenity which was followed by the American courts until the decisions in
Roth's Case (supra). The 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.
25. The general law of obscenity in England is contained in the Obscene
Publications Act, 1959. In terms of the said Act publication of obscene article,
whether for gain or not and its possession solely, either of the person himself
or for gain of another person is an offence. Interestingly, the statute defines
"obscenity" as follows:
an article shall be deemed to be obscene if its effect or the effect of any
one of its items is, if taken as a whole, such as to tend to deprave and corrupt
persons who are likely, having regard to all relevant circumstances, to read,
see or hear the matter contained or embodied in it.
26. A 1994 amendment also brought within the purview of this statute data
stored or transmitted electronically.
27. In DPP v. Whyte [1972] AC 849 the respondent booksellers were charged
with "having" obscene articles, namely books and magazines for publication for
gain. They were acquitted on the basis that their client was already depraved
and corrupted, but the House of Lords held that even those already depraved and
corrupted could be corrupted further. Lord Wilberforce observed as under:
The Act is not merely concerned with the once for all corruption for the
wholly innocent; it equally protects the less innocent from further corruption,
the addict from feeding or increasing his addiction. To say this is not to
negate the principle of relative obscenity certainly the tendency to deprave and
corrupt is not to be estimated in relation to some assumed standard of purity of
some reasonable average man. It is the likely reader. And to apply different
tests to teenagers, members of men's clubs or men in various occupations or
localities would be a matter of common sense.
28. Thus, it is clear that the Hicklin's Test has been applied to determine
obscenity in England since its evolution. The Courts in the United States of
America have given up the Hicklins Test, but the Indian law on obscenity is more
or less based on it. In addition to this, law on obscenity in India also panders
to the test of 'lascivious and prurient interests' as taken from the American
law.
India
29. The general law of obscenity in India can be found in Section 292 of the
Indian Penal Code, 1860 which reads as under:
Section 292. Sale, etc., of obscene books, etc.-[(1)] For the purposes of
Sub-section (2) book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene, if it
is lascivious or appeals to the prurient interest or if its effect, or (where it
comprises two or more distinct items) the effects of any one of its items, is,
if taken as a whole, such as to tend to deprave and corrupt persons who are
likely , having regard to all relevant circumstances, to read, see or hear the
matter contained or embodied in it.]
[(2) Whoever- sells, lets to hire, distributes, publicly exhibits or in any
manner puts into circulation or for purposes of sale, hire, distribution public
exhibition of circulation, makes produces, or has in
(a) Possession any obscene book, pamphlet, paper, drawing painting,
representation or figure or any other obscene objects whatsoever, or
(b) Imports, exports or conveys any obscene objects for any of the
purposes, aforesaid, on knowing or having reason to believe that such objects
will be sold let to hire, distributed or publicly exhibited or in any manner put
into circulation or
(c) takes part in or receives profit from any business in the course of
which he knows or has reasons to believe that such an object are for any of the
purposes aforesaid, made produced, purchased , kept, imported, exported, convey,
publicly excited, or in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any person is
engaged or is ready to engage in any act which is an offence under this section,
or that any such obscene object can be procured from or through any person, or
(e) Offers or attempts to do any act which is an offence under this
section, shall be punished [on first conviction with imprisonment of either
description for a term which may extend to two years, and with fine which may
extend to two thousand rupees, and, in the event of a second or subsequent
conviction, with imprisonment of either description for a term which may extend
to five years, and also with fine which may extend to five thousand rupees.]
[Exception.- this section does not extend to-
(a) any book, pamphlet, paper, writing, drawing, painting, representation
of figure-
(i) The publication of which is proved to be justified as being for the
public good on the ground that such book, pamphlet, paper, writing, drawing,
painting, representation or figure is in the interest of science, literature,
art or learning or other objects of general concern, or
(ii) which is kept or used bona fide for religious purpose;
(b) any representation sculptured, engraved, painted or otherwise
represented on or in-
(i) any ancient monument within the meaning of the Ancient Monuments and
Archaeological Sites and Remains Act, 1958(24 of 58), or
(ii) any temple, or any car used for the conveyance of idols, or kept or
used for any religious purpose.]]
30. Section 292 IPC was enacted by the Obscene Publications Act to give
effect to Article I of the International Convention for suppression of or
traffic in obscene publications to which India is a signatory. By Act 36 of
1969, Section 292 was amended to give more precise meaning to the word 'obscene'
as used in the section in addition to creating an exception for publication of
matter which is proved to be justified as being for the public good, being in
the interest of science, literature, art or learning or other objects of general
concern. Prior to its amendment, Section 292 contained no definition of
obscenity. The amendment also literally does not provide for a definition of
'obscenity' inasmuch as it introduces a deeming provision.
31. On a bare reading of Sub-section (1) of Section 292 it is obvious that a
book etc. shall be deemed to be obscene (i) if it is lascivious; (ii) it appeals
to the prurient interest, and (iii) it tends to deprave and corrupt persons who
are likely to read, see or hear the matter alleged to be obscene. It is only
once the impugned matter is found to be obscene that the question of whether the
impugned matter falls within any of the exceptions contained in the section
would arise.
32. Section 67 of the Information Technology Act, 2000 relevant for the
subject under discussion reads as follows:
67. Publishing of information which is obscene in electronic form.--Whoever
publishes or transmits or causes to be published in the electronic form, any
material which is lascivious or appeals to the prurient interest or if its
effect is such as to tend to deprave and corrupt persons who are likely, having
regard to all relevant circumstances, to read, see or hear the matter contained
or embodied in it, shall be punished on first conviction with imprisonment of
either description for a term which may extend to five years and with fine which
may extend to one lakh rupees and in the event of a second or subsequent
conviction with imprisonment of either description for a term which may extend
to ten years and also with fine which may extend to two lakh rupees.
33. Thus Section 67 is the first statutory provisions dealing with obscenity
on the Internet. It must be noted that the both under the Indian Penal Code,
1860 and the Information Technology Act, 2000 the test to determine obscenity is
similar. Therefore, it is necessary to understand the broad parameters of the
law laid down by the courts in India, in order to determine "obscenity".
34. The Indian Penal Code on obscenity has grown out of the English Law and
while interpreting the meaning of "obscenity" the Supreme Court in Ranjit D.
Udeshi v. State of Maharashtra uniformly adopted the test laid down by the
English Court in Hicklins Case Supra wherein it was held that the word "obscene"
in the section is not limited to writings, pictures etc. intended to arouse
sexual desire. At the same time, the mere treating with sex and nudity in art
and literature is not per se evidence of obscenity. It was emphasized that the
work as a whole must be considered, the obscene matter must be considered by
itself and separately to find out whether it is so gross and its obscenity so
decided that it is likely to deprave and corrupt those whose minds are open to
influences of this sort. Where art and obscenity are mixed, art must so
preponderate as to throw the obscenity out into the shadow or the obscenity so
trivial and insignificant that it can have no effect and may be overlooked.
35. The Courts explained that the Hicklin's test does not emphasize merely on
stray words, as the words are "matters charged" and to that extent it must be
held to secundum subjectum materiam, that is to say, applicable to the matter
there considered. Thus, the court must apply itself to consider each work at a
time.
36. It was further observed that there exists a distinction between
"obscenity" and "pornography", while later consists of pictures, writings etc.
which are intended to arouse sexual feelings whereas the former consists of
writings etc. which though are not intended to arouse sexual feelings but
definitely has that tendency.
37. In Shri Chandrakant Kalyandas Kakodkar v. The State of Maharashtra ,
which case relates to articles and pictures in the magazine being alleged to be
obscene and calculated to corrupt and deprave the minds of the reader, the
courts reiterated the ratio as was laid down in Ranjit Udeshi's case (supra) and
held that the concept of obscenity would differ from country to country
depending on the contemporary standards of the society. But to insist that the
standard should always be for the writer to see that the adolescent ought not to
be brought into contact with sex or that if they read any references to sex in
what is written whether that is the dominant theme or not, they would be
affected, would be to require authors to write books only for the adolescent and
not for the adults. It was held that with the standards of contemporary society
in India fast changing, the adults and adolescents have available to them a
large number of pieces of literature which have a content of sex, love and
romance and if a reference to sex by itself is considered obscene, no books
could be sold except those which are purely religious. Thus, what one has to see
is whether a class, not an isolated case, into whose hands the book, article or
story falls suffer in their moral outlook or become depraved by reading it or
might have impure and lecherous thought aroused in their minds.
38. The Supreme Court of India in the K.A. Abbas v. UOI has called the test
laid down in Mishkin's case
(supra) as "selective-audience obscenity test" and observed as follows:
49. 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.
39. In Samaresh Bose v. Amal Mitra the courts while distinguishing between
vulgarity and obscenity held that "vulgarity" may arouse a feeling of revulsion,
disgust and even boredom but unlike "pornography" or "obscenity" do not have the
tendency to corrupt or deprave the minds of a person. In addition to the above,
the court observed that for the purposes of judging obscenity, firstly the judge
must place himself in the position of the author in order to appreciate what the
author really wishes to convey, and thereafter he must place himself in the
position of the reader of every age group in whose hands the book is likely to
fall and then arrive at a dispassionate conclusion.
40. The court in Sada Nand and Ors. v. State (Delhi Administration) 2nd
(1986) II Delhi 81 laid down the test to the affect that the pictures of a nude
/semi-nude woman cannot per se be called obscene unless the same are suggestive
of deprave mind and are designed to excite sexual passion in the persons who are
likely to look at them or see them. This will depend on the particular posture
and the background in which a nude semi-nude woman is shown. While applying this
test in the instant case, the court held that the nude pictures cannot be termed
as obscene i.e. which will have a tendency to deprave and corrupt the minds of
people in whose hands the magazine in question is likely to fall. However, a
look at the impugned pictures was held to show beyond a shadow of doubt that
they can hardly be said to have any aesthetic or artistic touch, rather they
seem to have been taken with the sole purpose of attracting readers who may have
a prurient mind. The women in nude had been just made to lie on a grassy plot or
sit on some stool etc. and pose for a photograph in the nude. So they may well
be said to be vulgar and indecent but all the same it may be difficult to term
them obscene within the meaning of Section 292 IPC.
41. The findings of the court in Bobby Art International and Ors. v. Om Pal
Singh Hoon and Ors. , which may be relevant for the present matter, have been
reproduced below:
First, the scene where she is humiliated, stripped naked, paraded, made to
draw water from the well, within the circle of a hundred men. The exposure of
her breasts and genitalia to those men is intended by those who strip her to
demean her. The effect of so doing upon her could hardly been better conveyed
than by explicitly showing the scene. The object of doing so was not to
titillate the cinema-goer's lust but to arouse in him sympathy for the victim
and disgust for the perpetrators. The revulsion that Tribunal referred to was
not at Phoolan Devi's nudity but at the sadism and heartlessness of those who
had stripped her naked to rob her of every shred of dignity. Nakedness does not
always arouse the baser instinct. The reference by the Tribunal to the film
'Schindler's List' was apt. There is a scene in it of rows of naked men and
women, shown frontally, being led into the gas chambers of a Nazi concentration
camp. Not only are they about to die but they have been stripped in their last
moments of the basic dignity of human beings. Tears are a likely reaction; pity,
horror and a fellow feeling of shame are certain, except in the pervert who
might be aroused. We do not censor to protect the pervert or to assuage the
susceptibilities of the over-sensitive. 'Bandit Queen' tells a powerful human
story and to that story the scene of Phoolan Devi's enforced naked parade is
central. It helps to explain why Phoolan Devi became what she did: rage and
vendetta against the society that had heaped indignities upon her.
42. In the case of Ajay Goswami v. Union of India the Supreme Court, while
recognizing the right of adult entertainment, reviewed the position of law on
obscenity and summarized the various tests laid down of obscenity.
43. Recently, in Vinay Mohan v. Delhi Administration 2008 II AD (Delhi) 315,
Pradeep Nandrajog J. while dismissing the petition against framing of charge
held that it is a recognised principle of law that concept of obscenity is
moulded to a great extent by the social outlook of people and hence in relation
to nude/semi-nude pictures of a woman it would depend on a particular posture,
pose, the surrounding circumstances and background in which woman is shown.
Artistic Freedom and Obscenity
44. There is a sharp distinction between Constitution of United States of
America and India. In the former, freedom of speech guaranteed is absolute and
in the later the Constitutional itself provides for certain exceptions. The duty
cast upon the courts in India is to ensure that the State does not impose any
unreasonable restriction.
45. The Constitution of India, by virtue of Article 19 (1) (a), guarantees to
its citizen the freedom of speech and expression. India is also a party to the
International Covenant on Civil and Political Rights and therefore bound to
respect the right to freedom of expression guaranteed by Article 19 thereof,
which states:
a. Everyone shall have the right to hold opinions without interference.
b. Everyone shall have the right to freedom of expression; this right shall
include freedom to seek, receive and impart information and ideas of all kinds
regardless of frontiers, either orally, in writing or in print, in form of art,
or through any other media of his choice.
46. Nevertheless, there is an inseparable connection between freedom of
speech and the stability of the society. This freedom is subject to Sub-clause
(2) of Article 19, which allows the State to impose restriction on the exercise
of this freedom in the interest of public decency and morality. The relevant
portion of the same has been reproduced below:
Article 19(1) (a): All citizens shall have a right to freedom of speech and
expression.
...(2) Nothing in Sub-clause (a) of Clause (1) shall affect the operation
of any existing law, or prevent the State from making any law, insofar as such
law imposes reasonable restrictions on the exercise of the right conferred by
the said sub-clause in the interests of 4[the sovereignty and integrity of
India,] the security of the State, friendly relations with foreign States,
public order, decency or morality or in relation to contempt of court,
defamation or incitement to an offence.]
47. A bare reading of the above shows that obscenity which is offensive to
public decency and morality is outside the purview of the protection of free
speech and expression, because the Article dealing with the right itself
excludes it. Thus, any interpretation of 'obscenity' in the context of criminal
offences must be in consonance with the constitutional guarantee of freedom of
expression which freedom is not confined to the expression of ideas that are
conventional or shared by the majority. Rather, it is most often ideas which
question or challenge prevailing standards observed by the majority that face
the greatest threat and require the greatest protection as was so observed in
Ranjit Udeshi's case (supra).
48. The Supreme Court in Gajanan Visheshwar Birjur v. Union of India , while
dealing with an order of confiscation of books containing Marxist literature,
referred to the supremacy of the fundamental right of freedom of speech and
expression, and observed as under:
Before parting with this case, we must express our unhappiness with
attempts at thought control in a democratic society like ours. Human history is
witness to the fact that all evolution and all progress is because of power of
thought and that every attempt at thought control is doomed to failure. An idea
can never be killed. Suppression can never be a successful permanent policy. Any
surface serenity it creates is a false one. It will erupt one day. Our
constitution permits a free trade, if we can use the expression, in ideas and
ideologies. It guarantees freedom of thought and expression - the only
limitation being a law in terms of Clause (2) of Article 19 of the Constitution.
Thought control is alien to our constitutional scheme. To the same effect are
the observations of Robert Jackson, J. in American Communications Association v.
Douds 339 US 382, 442-43 (1950): 94 L Ed 925 with reference to the US
Constitution: 'Thought control is a copyright of totalitarianism, and we have no
claim to it. It is not the function of our Government to keep the citizen from
falling into error; it is the function of the citizen to keep the Government
from falling into error. We could justify any censorship only when the censors
are better shielded against error than the censored'.
49. As was also pointed out by Mr. Justice Holmes in Abramson v. United
States 250 U.S. 616:
The ultimate good desired is better reached by free trade in ideas-the best
test of truth is the power of the thought to get itself accepted in the
competition of the market.
50. Krishna Iyer, J., speaking for the Court in Raj Kapoor v. State , dealing
with a pro bono publico prosecution against the producer, actors and others
connected with a film called "Satyam, Shivam, Sundaram" on the ground of
prurience, moral depravity and shocking erosion of public decency held that the
censor certificate is a relevant material, important in its impact, though not
infallible in its verdict and observed as under:
...Art, morals and law's manacles on aesthetics are a sensitive subject
where jurisprudence meets other social sciences and never goes alone to bark and
bite because State-made strait-jacket is an inhibitive prescription for a free
country unless enlightened society actively participates in the administration
of justice to aesthetics.
...The world's greatest paintings, sculptures, songs and dances, India's
lustrous heritage, the Konarks and Khajurahos, lofty epics, luscious in patches,
may be asphyxiated by law, if prudes and prigs and State moralists prescribe
paradigms and prescribe heterodoxies.
51. In T. Kannan v. Liberty Creations Ltd. (2007) the Madras High Court has
said that there should be a substantial allowance for freedom thus leaving a
vast area for creative art to interpret life and society with some of its
foibles along with what is good. Art and literature include within themselves, a
comprehensive view of social life and not only in its ideal form.
52. In S. Rangarajan's case (supra), the Apex court dealt with the aspect of
censorship and held that freedom of expression cannot be held to ransom, by an
intolerant group of people. The fundamental freedom under Article 19(1) (a) can
be reasonably restricted only for the purposes mentioned in Articles 19(2) and
the restriction must be justified. It was observed as under:
The standard to be applied by the Board or courts for judging the film
should be that of an ordinary man of common sense and prudence and not that of
an out of the ordinary or hypersensitive man. We, however, wish to add a word
more. The censors Board should exercise considerable circumspection on movies
affecting the morality or decency of our people and cultural heritage of the
country. The moral values in particular, should not be allowed to be sacrificed
in the guise of social change or cultural assimilation. Our country has had the
distinction of giving birth to a galaxy of great sages and thinkers. The great
thinkers and sages through their life and conduct provided principles for people
to follow the path of right conduct. There have been continuous efforts at
rediscovery and reiteration of those principles.... Besides, we have the concept
of "Dharam" (righteousness in every respect) a unique contribution of Indian
civilization to humanity of the world. These are the bedrock of our civilization
3 and should not be allowed to be shaken by unethical standards. We do not,
however, mean that the Censors should have an orthodox or conservative outlook.
Far from it, they must be responsive to social change and they must go with the
current climate.
53. In Sakkal Papers (P) Ltd. v. Union of India ,
Mudholkar, J. said:
This Court must be ever vigilent in guarding perhaps the most precious of
all the freedoms guaranteed by our Constitution, The resson for this is obvious.
The freedom of speech and expression of opinion is of paramount importance under
a democratic Constitution which envisages changes in the composition of
legislatures and governments and must be preserved.
54. The Apex court in Ranjit Udeshi's case (supra) while answering the
question in affirmative as to whether the test as laid down of obscenity squares
with the freedom of speech and expression guaranteed under our Constitution, or
it needs to be modified and, if so, in what respects, pointed out as under:
...The laying down of the true test is not rendered any 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 test which we evolve must obviously be of a general character but it
must admit of a just application from case to case by indicating a line of
demarcation not necessarily sharp but sufficiently distinct to distinguish
between that which is obscene and that which is not.
...A balance should be maintained between freedom of speech and expression
and public decency and morality but when the latter is substantially
transgressed the former must give way.
55. In so far as the scope of Section 292 is concerned, from the above
discussion, it is clear that that for an offence to be made out under the said
section, its ingredients need to be met. In the context of the present painting
to be deemed to be obscene, it has to satisfy at least one of the three
conditions: (i) if it is lascivious; (ii) it appeals to the prurient interest,
and (iii) it tends to deprave and corrupt persons who are likely to read, see or
hear the matter alleged to be obscene. In addition to this, the relevance of
exceptions arises in excluding otherwise obscene matter from the ambit of the
criminal offence of obscenity and such exceptions has no role to play in
determination of the obscenity of the impugned matter.
56. The evolution of law in relation to the delicate balance between artistic
freedom viz-a-viz the right of speech and expression while dealing with the
question of obscenity requires certain important norms to be kept in mind.
Contemporary standards
57. In judging as to whether a particular work is obscene, regard must be had
to contemporary mores and national standards. While the Supreme Court in India
held Lady Chatterley's Lover to be obscene, in England the jury in the case of R
v. Penguin Books, Ltd. (1961) Crim. L.R. 176 acquitted the publishers finding
that the publication did not fall foul of the obscenity test. This was heralded
as a turning point in the fight for literary freedom in UK. "Community mores and
standards" played a part in the Indian Supreme Court taking a different view
from the English jury. Judging the work as a whole
58. A holistic view must thus be taken apart from a closer scrutiny of the
impugned subject to come to a conclusion whether the same is grossly obscene and
likely to deprave and corrupt.
Aesthetic or artistic touch
59. The work of art must have any aesthetic or artistic touch and should not
seem to have been taken with the sole purpose of attracting viewers who may have
a prurient mind. In other words, where obscenity and art are mixed, art must be
so preponderating as to throw obscenity into shadow or render the obscenity so
trivial and insignificant that it can have no effect and can be overlooked.
60. Sex and obscenity are not always synonymous and it would be wrong to
classify sex as essentially obscene or even indecent or immoral. The basic
concern should be to prevent the use of sex designed to play a commercial role
by making its own appeal.
61. In relation to nude/semi-nude pictures of a woman it would depend on a
particular posture, pose, the surrounding circumstances and background in which
woman is shown.
Opinion of literary/artistic experts
62. In Ranjit Udeshi's case (supra) this Court held that the delicate task of
deciding what is artistic and what is obscene has to be performed by courts and
as a last resort by the Supreme Court and, therefore, the evidence of men of
literature or others on the question of obscenity is not relevant. However, in
Samaresh Bose's case (supra) this Court observed:
In appropriate cases, the court, for eliminating any subjective element or
personal preference which may remain hidden in the subconscious mind and may
unconsciously affect a proper objective assessment, may draw upon the evidence
on record and also consider the views expressed by reputed or recognised authors
of literature on such questions if there be any for his own consideration and
satisfaction to enable the court to discharge the duty of making a proper
assessment.
Freedom of speech and expression
63. In S. Rangarajan v. P. Jagjevan Ram and Ors. , while interpreting Article
19(2) this Court borrowed from the American test of clear and present danger and
observed:
Our commitment to freedom of expression demands that it cannot be
suppressed unless the situations created by allowing the freedom are pressing
and the community interest is endangered. The anticipated danger should not be
remote, conjectural or far-fetched. It should have proximate and direct nexus
with the expression. The expression of thought should be intrinsically dangerous
to the public interest. [In other words, the expression should be inseparably]
like the equivalent of a 'spark in a power keg'.
64. Public decency and morality is outside the purview of the protection of
free speech and expression, and thus a balance should be maintained between
freedom of speech and expression and public decency and morality but the former
must never come in the way of the latter and should not substantially transgress
the latter.
Test of ordinary man
65. The test for judging a work should be that of an ordinary man of common
sense and prudence and not an "out of the ordinary or hypersensitive man".
Social purpose or profit
66. When there is propagation of ideas, opinions and information or public
interests or profits, the interests of society may tilt the scales in favor of
free speech and expression. Thus books on medical science with intimate
illustrations and photographs though in a sense immodest, are not to be
considered obscene, but the same illustrations and photographs collected in a
book from without the medical text would certainly be considered to be obscene.
67. Obscenity without a preponderating social purpose or profit cannot have
the Constitutional protection of free speech or expression. Obscenity is
treating with sex in a manner appealing to the carnal side of human nature or
having that tendency. Such a treating with sex is offensive to modesty and
decency.
Test of strict liability
68. 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.
69. It is also clear and apparent that the criminal offence of obscenity is
predicated upon the legal term of art and that the legal test of obscenity
cannot be equated with the dictionary definition of obscenity which takes within
its fold anything which is offensive, indecent, foul, vulgar, repulsive etc. In
legal terms of obscenity, the matter which offends, repels or disgusts does not
thereby tend to deprave or corrupt a person exposed to such matter and cannot
therefore, without more, be said to be obscene.
70. To fall within the scope of 'obscene' under Section 292 & 294 IPC, 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 a 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.
71. It must also be remembered that a piece of art may be vulgar but not
obscene. In order to arrive at a dispassionate conclusion where it is crucial to
understand that art from the perspective of the painter, it is also important to
picture the same from a spectator's point of view who is likely to see it.
72. The learned Counsel for the petitioner pleaded that the impugned painting
on the face of it contains no matter capable of being held to be obscene in
terms of the legal test of obscenity delineated. It was thus submitted that in
the complaints filed against the petitioner, the allegation of obscenity in
terms of Section 292 is sought to be sustained on the basis of the nudity of the
figure depicted in the painting and the identity of the figure alleged as
'Bharat Mata'. 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.
73. The learned Counsel further went ahead and contended that even if it is
assumed that the said figure is 'Bharat Mata', its identity as such does not
contribute in any manner to the painting being lascivious, or appealing to the
prurient interest, or tending to deprave and corrupt persons who are likely to
view the painting and that its identity is irrelevant to the alleged obscenity
of the painting. This aspect is of some significance as the stage for recording
of defense evidence has not arrived and the challenge is to the summoning
orders.
74. The submission made on behalf of the petitioner was that the instant
complaints were filed in the background of the protests being led even when the
petitioner had tendered an apology which was so reported and the said painting
was withdrawn from the auction. It was also pointed out that the complainants
have selectively targeted the petitioner for a painting which depicts nudity
only in a mild, stylized manner which according to him is hardly graphic or
anatomically precise especially taking into consideration that the petitioner
has repeated asserted that nudity in his art is intended as an expression of
purity as also the fact that there have been even more graphic depictions of
nudity and sexuality, including hindu deities and mythological figures in many
contemporary and ancient Indian art by the various artists concerned, some of
which have also been placed on record.
75. The complainants/respondents in Crl. Rev. P. Nos. 114/2207 and 282/2007
have also alleged of an offence Under Section 294 and 298 IPC against the
petitioner. Section 294 IPC reads as under:
Section 294. Obscene acts and songs. Whoever, to the annoyance of others-
(a) Does any obscene act in any public place, or
(b) Sings, recites or utters any obscene song, balled or words, in or near
any public place,
Shall be punished with imprisonment of either description for a term which
may extend to three months, or with fine, or with both.]
76. Section 294 IPC deals with the prevention of an obscene act being
performed in public to the annoyance of the public. In this respect, the
submissions made by the petitioner was that to make out a case under the
aforesaid section the main ingredients of the section need to be complied with
which includes the impugned act to be performed in a public place; the said act
to be obscene and lastly, to cause annoyance to others. The learned Counsel
placing reliance on Narendra H. Khurana and Ors. v. The Commisssioner of Police
and Anr. 2004 Cri.L.J. 3393 stated there is no prima facie case made out under
the aforesaid section since there is no disclosure made in the complainants of
any immediate, proximate nexus between the alleged annoyance of the complainants
and act done in a public place by the petitioner. The alleged annoyance could
have been by viewing the painting on the internet and the only alleged act of
the petitioner having a nexus with the alleged annoyance is the uploading of the
painting on the website. It was also pleaded that there could have been no
'annoyance' caused to the complainants by their viewing the said painting on the
website for the reason that the complainants could have easily chosen not to
view the website any further.
77. For the offence to be made out under Section 298 IPC, the accused must
have a deliberate intention of wounding the religious feelings of the
complainant by uttering some word or making some sound or a gesture or placing
an object in the sight of the complainant and it is the contention of the
learned Counsel for the petitioner that the petitioner has done no such act
which can fall under the said purview. Section 298 IPC provides as under:
Section 298. Uttering, words, etc., with deliberate intent to wound the
religious feelings of any person
Whoever, with the deliberate intention of wounding the religious feelings
of any person, utters any word or makes any sound in the hearing of that person
or makes any gesture in the sight of that person or places any object in the
sight of that person, shall be punished with imprisonment of either description
for a term which may extend to one year, or with fine, or with both.
78. Akin to Section 294 IPC, Section 298 IPC also requires a nexus between
the impugned act and the alleged deliberate intention of the petitioner to wound
the religious feelings of the complainants, which according to the learned
Counsel is not so in the present case. It is the case of the learned Counsel for
the petitioner that the impugned painting cannot form the basis of any
deliberate intention on the part of the petitioner to wound the religious
feelings of the complainants since the figure, on the basis of the identity
alleged, represents an anthropomorphic depiction of the nation. It is also not a
religious depiction which is capable of offending the 'Hindu' religious feelings
as alleged as also that the concept of Bharat Mata is not the sole premise or
belief of Hindus alone. Learned Counsel for the petitioner drew strength from
the judgments of Narayan Das and Anr. v. State ; Shalibhadra Shah and Ors. v.
Swami Krishna Bharati and Anr. 1981 Cri. L.J. 113 and Acharya Rajneesh v. Naval
Thakur and Ors. 1990 Cri.L.J. 2511 to advance the proposition that a mere
knowledge of the likelihood that the religious feelings of another person may be
wounded would not be sufficient to hold a person liable Under Section 298 IPC.
79. In addition to this, in Crl. Rev. P. No. 282/2007, the offence Under
Section 500 IPC is also alleged against the petitioner. It is submitted by the
learned Counsel for the petitioner that such offence cannot be made out against
the petitioner for the reason that the basic ingredient of the offence of
defamation being some imputation capable of harming the reputation of the
complainant is absent from the complaint.
80. On the other hand, the submissions made by the learned Counsel for the
respondents was that the petitioner having painted many contemporary and modern
form of art in the past owns and maintains a website http./www.mfhussain.com
where in the present case, the said painting was uploaded for the purposes of
sale with the cause title "Mother India Nude Goddess". It was averred that the
petitioner has placed nothing substantial on record to show that the said
website is not owned by him. It was thus submitted that the painter's earlier
conduct has also been on the same lines while he painted many hindu
Gods/Godesses which resulted communal disharmony but on his tendering an apology
no further action was taken. The argument advanced by the learned Counsel was
that for the reason that no action was taken against this painter earlier, he
has now taken a further liberty and went ahead to paint Bharat Mata depicting
the boundaries of our nation with names of the various states on it and the
national emblem i.e. the Ashoka Chakra. The alleged Bharat Mata is depicted in
nude in a manner thereby making it obscene showing the different parts of her
body as different states of our country. It was also contended that the painting
depicts the Ashoka Chakra in an objectionable manner showing disrespect to the
same which is covered under the provisions as envisaged in the Prevention of
Insults to National Honour Act, 1971 and the Emblems and Names (Prevention of
Improper Use) Act, 1950.
81. This act of the petitioner is alleged to have not only hurt the feelings
of Hindus who are in majority in India but also every patriotic Indian who loves
his mother land. Bharat Mata is a symbol of pride, prestige, dignity and the
soul of this country and it was the case of the respondents that the petitioner
cannot be given the right to hurt the sentiments and feelings of the society
under the garb of freedom of expression and that no one can be permitted to have
onslaught on such sensibilities. It was contented that the standard set by the
courts over the time have given substantial freedom for the creative persons
thus leaving a vast area for creative art to interpret life and society with
some of its foibles along with what is good. The line has to be drawn where the
average man or a man with morals begins to feel embarrassed or disgusted at a
naked portrayal of life without redeeming touch of art or genuine or social
value. It is a settled law that when the question pertains to an individual's
rights versus public welfare, the rights of public at large prevails as so held
in Baragur Ramachandrappa and Ors. v. State of Karnataka (2007) 3 SCC 11. It was
submitted that since public decency and moral values of the society are to be
given due consideration, making of nude picture of mother India cannot be termed
in any manner as in the interest of the society or as an art having an aesthetic
or artistic value.
82. It was argued that place of the motherland is above heaven which has been
explicated by way of a sanskrit shloka i.e. "Janani Janam Bhumisch Swargadapi
Gariasi". The values and the ethics are so imbibed in an Indian that the mother
land is placed much above his own mother and that is the reason why mothers in
India never hesitate in sacrificing their sons for the nation and the painter by
depicting mother India in nude has offended such soldiers/sons sitting at the
borders and their mothers. Although, it might not have provoked feelings of lust
but has definitely provoked the feeling of hatred and hurt nationalistic
feelings of millions of Indians which can be detrimental to our integrity and
sovereignty.
83. The learned Counsel for the respondents laid emphasis on the alleged
previous/past misconduct of the petitioner where the petitioner's paintings with
the depiction of Hindu Gods/goddesses in nude and erotic postures led to
widespread protests and agitations in masses. It was pleaded that the past
conduct can be used as an evidence to prove that the petitioner had the means
read to draw such a painting in order to hurt the sentiments and feelings of
Indians as also that in such cases means read can be gathered only by
circumstantial evidence. In this regard, the learned Counsel drew the attention
of this Court to the decision of the Apex court in State of Karnataka v. Praveen
Bhai Thogadia (Dr) , which has been reproduced as under:
...Past conduct and antecedents of a person or group or an organisation may
certainly provide sufficient material or basis for the action contemplated on a
reasonable expectation of possible turn of events, which may need to be avoided
in public interest and maintenance of law and order. No person, however big he
may assume or claim to be, should be allowed, irrespective of the position he
may assume or claim to hold in public life, to either act in a manner or make
speeches which would destroy secularism recognised by the Constitution of India.
Secularism is not to be confused with communal or religious concepts of an
individual or a group of persons. It means that the State should have no
religion of its own and no one could proclaim to make the State have one such or
endeavor to create a theocratic State. Persons belonging to different religions
live throughout the length and breadth of the country. Each person, whatever be
his religion, must get an assurance from the State that he has the protection of
law freely to profess, practise and propagate his religion and freedom of
conscience. Otherwise, the rule of law will become replaced by individual
perceptions of one's own presumptions of good social order.
...Communal harmony should not be made to suffer and be made dependent upon
the will of an individual or a group of individuals, whatever be their religion,
be it of a minority or that of the majority. Persons belonging to different
religions must feel assured that they can live in peace with persons belonging
to other religions.
...The valuable and chershed right of freedom of expression and speech may
at times have to be subjected to reasonable subordination to social interests,
needs and necessities to preserve the very core of democratic life -
preservation of public order and rule of law. At some such grave situation at
least the decision as to the need and necessity to take prohibitory actions must
be left to the discretion of those entrusted with the duty of maintaining law
and order, and interposition of courts - unless a concrete case of abuse or
exercise of such sweeping powers for extraneous considerations by the authority
concerned or that such authority was shown to act at the behest of those in
power, and interference as a matter of course and as though adjudicating an
appeal, will defeat the very purpose of legislation and legislative intent.
84. The learned Counsel for the respondents relied upon the judgment of Aveek
Sarkar v. State of Jharkhand 2006 Cri. L.J. 4211 where the manufacturer and the
TV channels were not held directly or indirectly responsible for the pictures of
God/goddesses being used for products on television as distinguished from the
present case where the petitioner is directly responsible for making such
painting and uploading it on his own website thereby infringing the rights of
the complainants and many other Indians.
85. The petitioner himself opted for getting the complaints cases filed
against him to be transferred at one place and therefore had approached the
Supreme Court to pass appropriate directions. But, even after that, it is
alleged that he has been flouting the law and refraining himself from the
process of court on some or the other pretext and has filed the present revision
petitions also with the same objective. In such a case, thus, the petitioner
should not be entitled to any discretionary relief Under Section 482 of the said
Code which as per the settled law has to be exercised only in rarest of rare
cases to prevent abuse of court or miscarriage of justice.
86. It was submitted that the matters at hand are being tried under certain
provisions of the Indian Penal Code but that cannot be a reason to scuttle the
proceedings on such technical grounds, specially when sections can be added or
subtracted at any later stage of the proceedings as was held in Dinesh Bharat
Chand Sankla v. Kurlon Limited and Ors. 2006 Cri.L.J. 261.
87. The learned Counsel argued that it is not the case that the impugned
painting was put up for display in some art gallery or private exhibition,
instead it was uploaded on his own website which could be accessed by any person
and any common man who is a patriot would get affected by the said picture.
Hence, the yardstick to determine whether the painting is obscene or not should
be seen from the mindset of the society as a whole and not of a particular
'class'.
88. The plea raised on behalf of the respondents was that the present
petitions filed by the petitioner is at a premature stage since evidence has to
be led and parties have to be heard for determination of the case and that
quashing the said proceedings at the threshold at such nascent stage would not
be appropriate.
89. It was also averred that when the petitioner can make the deliberate act
of outraging the sentiments of his fellow nationals by drawing such painting at
the fag end of his life then he might as well be punished for such act if so
held guilty. Thus, the petitioner cannot take the advantage, excuse and defense
of his old age.
90. It was brought to the notice of this Court that the State also in this
regard has preferred to maintain its silence thereby not performing its duty and
if this situation prevails, then anarchy would follow as a consequence. It is
the bounden duty of the state to generate faith in the minds and hearts of its
citizens so that they feel that their rights would be protected and that they
would be given equitable justice.
Judicial scrutiny and abuse of process
91. It was contended that the complaints made in all the revision petitions
bear a striking similarity to one another and hence have been used as a tool to
harass the petitioner which amounts to gross abuse of the process of the court.
It was submitted that where the avenue of filing a private complaint directly
before the magistrate provides a salutary and invaluable remedy to a genuine
complainant seeking redressal, easy recourse to such a procedure as a convenient
substitute to filing a complaint with the police also makes the remedy
susceptible to misuse. In a police complaint case, prior to the summoning of an
accused, the Magistrate has the benefit of a police report. Such a safeguard in
favor of the accused ought not to be circumvented merely by taking recourse to
the private complaint procedure and therefore the suggestion put forward by the
learned Counsel is that only in appropriate cases should a private complaint
case proceed further without a prior investigation by the police consequent upon
the direction of the Magistrate Under Section 156(3) of the Code of Criminal
Procedure (the said Code for short) in the matter.
92. It was further submitted that in case the magistrate feels appropriate to
take cognizance of an offence, he still has the discretion Under Section 202 of
the Code to postpone the issue of process against the accused and either enquire
himself into the case or direct investigation to be made by the police or by
such other person he deems fit, for the purposes of deciding whether or not
there is sufficient ground for proceeding Under Section 204 of the Code. In this
regard, reliance was placed on Pepsi Foods Ltd. v. Special Judicial Magistrate
and Naganagouda Veeranagouda Patil and Anr. v. Special Judicial Magistrate and
Ors. 1998 Cri.L.J. 1707 where it has been observed that summoning of an accused
in a criminal case is a serious matter. Criminal law cannot be set into motion
as a matter of course. The order of the Magistrate summoning the accused must
reflect that he has applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of allegations made in the
complaint and the evidence both oral and documentary in support thereof and
would that be sufficient for the complainant to succeed in bringing charge home
to the accused. It is not that the Magistrate is a silent spectator at the time
of recording of preliminary evidence before summoning of the accused. The
Magistrate has to carefully scrutinise the evidence brought on record and may
even himself put questions to the complainant and his witnesses to elicit
answers to find out the truthfulness of the allegations or otherwise and then
examine if any offence is prima facie committed by all or any of the accused.
93. In Punjab National Bank v. Surendra Prasad Sinha 1993 Supp (1) SCC 499,
the court held as under:
...judicial process should not be an instrument of oppression or needless
harassment.
...There lies responsibility and duty on the Magistracy to find whether the
concerned accused should be legally responsible for the offence charged for.
Only on satisfying that the law casts liability or creates offence against the
juristic person or the persons imp leaded then only process would be issued. At
that stage the court would be circumspect and judicious in exercising discretion
and should take all the relevant facts and circumstances into consideration
before issuing process lest it would be an instrument in the hands of the
private complaint as vendetta to harass the persons needlessly. Vindication of
majesty of justice and maintenance of law and order in the society are the prime
objects of criminal justice but it would not be the means to wreak personal
vengeance.
94. It was stated that under Section 200 the magistrate is cast upon with a
duty to take cognizance of an offence only upon oath of the complainant and the
witnesses present therein to proceed Under Section 204 Cr.P.C. The said
requirement must not be treated as a mere formality, especially when the
proceedings at that stage are ex-parte. It was thus contended that in the
absence of a police report, ordinarily, unless a Magistrate is satisfied that
the complaint provides the necessary facts and details and is adequately
supported by pre-summoning documentary oral evidence, an enquiry Under Section
202 may not be instituted. It was pointed out that a further safeguard has been
provided through a recent amendment by the Act 25 of 2005 w.e.f. 23-06-2006 to
Section 202 of the said Code wherein it is now obligatory on the Magistrate to
postpone issue of process against the accused where the accused is residing at a
place beyond the area in which he exercises jurisdiction.
95. The submission made by the learned Counsel on behalf of the respondents
was that the legal position enunciated by the learned Counsel for the petitioner
cannot be disputed but the process against the petitioner in the present cases
was initiated only after recording the statement of the complainants and hearing
the arguments on the same and thus it cannot be said that the Ld. Magistrate had
not applied his judicial mind before issuing process.
96. I have heard the learned Counsels for the parties and given deep thought
to the matter keeping in mind the importance of the legal principles raised in
this matter. A perusal of the complaints and the material placed on record show
that the narrow questions which need consideration of this Court are that
whether an artist like in the present case be given the liberty to paint a
nation in the context of motherland in nude and whether such a painting would be
considered as obscene or not. In the trial proceedings, only summoning orders
have been passed till now, thus the determination of the above said questions
shall be based on certain assumptions that the painter had made the said
painting portraying Mother India in nude titled 'Mother India Nude Goddess' and
put up on the website owned by the artist himself.
97. In order to examine the matter closely, the impugned painting itself has
been reproduced below:
98. In the conspectus of the legal principles enunciated and discussed
aforesaid both of India and across the globe, the legal tests governing the law
on obscenity are clear. On applying the said tests governing obscenity, in my
considered view, the said painting cannot be said to fall within the purview of
Section 292 thereby making it obscene. The impugned painting on the face of it
is neither lascivious nor appeals to the prurient interests. At the same time,
the person who is likely to view the said painting would not tend to be depraved
or corrupted. In other words, the said painting would not arouse sexual interest
in a perverted inordinate person or would not morally corrupt and debase a
person viewing the said painting. Though some might feel offended or disgusted
at the very inception of seeing the alleged Mother India in nude but that by
itself and nothing more in my opinion is not sufficient to qualify the test of
obscenity. The said painting depicting India in a human form in no manner has
that tendency to make an average person feel embarrassed by naked portrayal of a
concept which has no particular face to it since the painting has not lost its
artistic value/touch.
99. An attempt to understand the said painting from the artist's/petitioner's
perspective would show how the painter by way of an abstract expression has
tried to elucidate the concept of a nation in the form of a distressed woman. No
doubt, the concept of a nation has had a long association with the idea of
motherhood but just because the artist has expressed it in nude does not make
the painting obscene per se thereby satisfying the test that nudity or sex alone
cannot be said to be obscene. If the painting is looked as a whole, it would
reveal that that the revulsion referred to by learned Counsel for the
respondents of patriotic nationals would not arise for the reason that except
the fact that it is in nude, there is nothing which can be considered as
pinching to the eye. As a matter of fact, the aesthetic touch to the painting
dwarfs the so called obscenity in the form of nudity and renders it so picayune
and insignificant that the nudity in the painting can easily be overlooked.
100. Once Hans Hofmann said and I quote, "A work of art is a world in itself
reflecting senses and emotions of the artist's world." To put it differently in
the words of Edward Hopper, "Great art is the outward expression of an inner
life in the artist." If the above holds true, then it would not be wrong to
suggest that the petitioner is pained by the growing untold misery of our nation
and made an attempt to bring the same out on a canvass. The artist's creativity
in this painting is evident from the manner in which the artist by way of a tear
and ruffled, unkempt, open hair of the woman tried to portray the sad and the
dispirited face of our nation who seems to have suffered a great deal of anguish
and agony. A woman's sorrow has been described by the way the woman is lying
with her eyes closed, with one arm raised on her face and a tear dropping from
the eye. The object of painting the woman in nude is also part of the same
expression and is obviously not to stimulate the viewer's prurience but instead
to shake up the very conscious of the viewer and to invoke in him empathy for
India and abhorrence for the culprits. The person who may view the painting is
likely to react in tears, silence or analogous to the same but no way near the
feelings of lust. There can be many interpretations to the painting. One of the
interpretations to it can be to show the disconsolate India which is entangled
in various problems like corruption, criminalisation, crisis of leadership,
unemployment, poverty, over population, low standard of living, fading values
and ethics etc. The other can be that Bharat Mata is perhaps just used as a
metaphor for being so bereft because of the earthquake which occurred around the
time when this painting was made. Other than this, the bold use of colour and
the depiction of the great range of Himalayas by way of the hair flowing of the
women restores the artistic touch in the painting.
101. One of the tests in relation to judging nude/semi nude pictures of women
as obscene is also a particular posture or pose or the surrounding circumstances
which may render it to be obscene but in the present painting, apart from what
is already stated above, the contours of the woman's body represent nothing more
than the boundaries/map of India. There can be a numbers of postures or poses
that one can think of which can really stimulate a man's deepest hidden passions
and desires. To my mind, art should not be seen in isolation without going into
its onomatopoetic meaning and it is here I quote Mr. Justice Stewart of the US
Supreme Court in Jacobellis v. Ohio 378 U.S. 184 (1964) who defined 'obscenity'
as, "I will know it when I see it". The nude woman in the impugned painting is
not shown in any peculiar kind of a pose or posture nor are her surroundings so
painted which may arouse sexual feelings or that of lust in the minds of the
deviants in order to call it obscene. The placement of the Ashoka Chakra or the
States in the painting is also not on any particular body part of the woman
which may be deemed to show disrespect to the Ashoka Chakra/States and the same
was conceded by the learned Counsel for the respondent during the course of the
arguments advanced. Even if a different view had to be taken that if the painter
wanted to depict India in human form, it may have been more appropriate to cloth
the woman in some manner may be by draping a sari or by a flowing cloth etc.,
but that alone cannot be made a ground to prosecute the painter. It is possible
that some persons may hold a more orthodox or conservative view on the depiction
of Bharat Mata as nude in the painting but that itself would not suffice to give
rise to a criminal prosecution of a person like the petitioner who may have more
liberal thoughts in respect of mode and manner of depiction of Bharat Mata. The
very theme of our Constitution encompassing liberty, equality and fraternity
would abhor the non tolerance of another view. The judge also must not apply his
more liberal or conservative view in determining this aspect but should place
himself in the shoes of the painter and endeavor to decipher the theme and
thought process of the painter who created the painting. It would always be
prudent for the judge to err on the side of a liberal interpretation giving the
scheme of our Constitution.
102. The learned Counsel had vehemently argued that the petitioner is a
habitual offender who gets into controversies and uses it as a tool of
publicity. He had offended the feelings of a particular sect of people by
painting such pictures in the past also by depiction of Hindu Gods/Goddesses in
nude. His conduct has been such that he cannot be pardoned. It was pleaded that
the petitioner uses nudity just as a gimmick and to gain mileage over others.
103. In my considered view, the alleged past misconduct of the petitioner
cannot have any bearing on the present case because there has been nothing which
has come on record to prove the converse. It is made clear that the paintings
depicting Hindu Gods/Goddesses in nude by the petitioner do not form a subject
matter of the present case and as such the learned Counsels have been unable to
bring to the notice of this Court any cases/complaints pending or decided in
this regard to go against the petitioner. The persons who may feel aggrieved by
those set of paintings have an appropriate remedy in law to get their rights
redressed. Hence, commenting on those paintings would be prejudging the said
paintings and passing a verdict on the same thus prejudicing the rights of the
accused/petitioner.
104. There are a few paintings brought on record which provide a glimpse of
the ancient Indian art showcasing the absence of inhibition and guilt and the
can dour and boldness with which our society set out seeking its pleasures.5
Other than this, the literature of India both religious and secular is full of
sexual allusions, sexual symbolisms and passages of such frank eroticism the
likes of which are not to be found elsewhere in world literature.6 Hinduism
being the world's oldest religious tradition, incorporates all forms of belief
and worship without necessitating the selection or elimination of any. The Hindu
is inclined to revere the divine in every manifestation, whatever it may be, and
is doctrinally tolerant. A Hindu may embrace a non-Hindu religion without
ceasing to be Hindu, and since the Hindu is disposed to think synthetically and
to regard other forms of worship, strange gods, and divergent doctrines as
inadequate rather than wrong or objectionable, he tends to believe that the
highest divine powers complement each other for the well-being of the world and
mankind. The core of religion does not even depend on the existence or non-
existence of God or on whether there is one god or many. Since religious truth
is said to transcend all verbal definition, it is not conceived in dogmatic
terms. Hinduism is then both a civilization and a conglomerate of religions with
neither a beginning, a founder, nor a central authority, hierarchy, or
organization.
105. The conundrum which has blocked the minds of a few today was given a
riposte by Swami Vivekananda in the following words8:
...we tend to reduce everyone else to the limits of our own mental universe
and begin privileging our own ethics, morality, sense of duty and even our sense
of utility. All religious conflicts arose from this propensity to judge others.
If we indeed must judge at all, then it must be `according to his own ideal, and
not by that of anyone else'. It is important, therefore, to learn to look at the
duty of others through their own eyes and never judge the customs and
observances of others through the prism of our own standards.
106. It would not be proper to hold that the painter/petitioner had a
deliberate intention to manifestly insult Bharat Mata which is clear from his
various interviews and reports placed on record where he has consistently
maintained that he actually celebrates nudity and considers it as the purest
form of expression. It also cannot be lost sight of that he had immediately
withdrawn the said painting from the auction and apologised to those offended,
thus making it clear that his is only an artistic impulse. Under the criminal
jurisprudence, for an offence to be made out against an accused, the ingredients
of means read and actus reas need to be proved. In the present case, since the
scope of the subject is so limited, it does not really require any evidence to
be led and on the face of it, both the elements i.e. means read and actus reas
appear to be absent.
107. I am unable to accept the plea raised by the learned Counsel for the
respondents that the said painting uploaded on a website could be accessed by
any person sitting across the globe who in consequence whereto could get
affected by viewing the same. There can be no exasperation caused by viewing
such painting on the website for the reason that a person would firstly access
such a website only if he has some interest in art and that too contemporary art
and in case he does view such a website, he always would have the option to not
to view or close the said web page. It seems that 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. Hence, the offence alleged
Under Section 294 IPC can not be made out. Similarly, the ingredients of Section
298 IPC as alleged are not met since there seems to be no deliberate intention
on the part of the petitioner to hurt feelings of Indians as already stated and
as a matter of fact, the subject matter i.e Bharat Mata could be alleged to
wound nationalist feelings of an individual and not any religious feelings. I am
in agreement with the contention raised by the learned Counsel for the
petitioner that 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.
108. Section 500 IPC requires the basic ingredient of defamation to be
satisfied which seems to be completely absent in the present case.
109. From the dawn of civilization, India has been home to a variety of
faiths and philosophies, all of which have co-existed harmoniously. The then
Chief Justice S.R. Das in In Re: Kerala Education Bill 1957 AIR 1958 SC 956
speaking of the Indian tradition of tolerance observed as under:
...Throughout the ages endless inundations of men of diverse creeds,
cultures and races - Aryans and non-Aryans, Dravidians and Chinese, Scythians,
Huns, Pathans and Mughals - have come to this ancient land from distant regions
and climes. India has welcomed them all. They have met and gathered, given and
taken and got mingled, merged and lost in one body. India's tradition has thus
been epitomised in the following noble lines:
None shall be turned away
From the shore of this vast sea of humanity
That is India
110. Consensus and accommodation have formed a significant and integral part
of Indian culture and cornerstone of our constitutional democracy. In the
context of obscenity, community mores and standards have played a very
significant role in the past with the Indian courts. Indian art has always
celebrated the female form. There is nothing salacious about it. Gloria Stienem,
a feminist scholar and writer, once made a salient point about the problem
behind obscenity:
Sex is the tabasco sauce that an adolescent national pallet sprinkles on
every dish on the menu.
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.9 It is most unfortunate that India's
new 'puritanism' is being carried out in the name of cultural purity10 and a
host of ignorant people are vandalizing art and pushing us towards a pre-
renaissance era.
111. We are at such a juncture where for the purposes of introspection, for
looking both inwards and outwards, there is a lot to be learnt from the past and
the same to be implemented in the future. India is one such pluralist society
which acts a model of unity in the mosaic of diversities and has taught the
world the lesson of tolerance by giving shelter to the persecuted and refugees
of all religions and all nations. The standards of the contemporary society in
India are fast changing and therefore, now in this age of modernization, we
should more so embrace different thinking and different thoughts and ideas with
open arms. But while an artist should have his creative freedom, he is not free
to do anything he wants. The line which needs to be drawn is between the art as
an expression of beauty and art as an expression of an ill mind intoxicated with
a vulgar manifestation of counter-culture where the latter needs to be kept way
from a civilian society.
112. Plato once asked, "What do men organise themselves into the society
for?" and answered, "To give the members of the society, all the members, the
best chance of realizing their best selves". This is the very purpose of social
organisation. All human beings incomplete in themselves seek their ordainment of
fulfilllment and destiny in the enriching human company and democracy provides
the richest and the most profound opportunities of that mutual enrichment.11
113. Democracy has wider moral implications than mere majoritarianism. A
crude view of democracy gives a distorted picture. A real democracy is one in
which the exercise of the power of the many is conditional on respect for the
rights of the few. Pluralism is the soul of democracy. The right to dissent is
the hallmark of a democracy. In real democracy the dissenter must feel at home
and ought not to be nervously looking over his shoulder fearing captivity or
bodily harm or economic and social sanctions for his unconventional or critical
views. 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.12
114. Human personality can bloom fully and humanism can take deep roots and
have its efflorescence only in a climate where all display an attitude of
tolerance and a spirit of moderation.13
115. Our Greatest problem today is fundamentalism which is the triumph of the
letter over the spirit.14 In a free democratic society tolerance is vital
especially in large and complex societies comprising people with varied beliefs
and interests. An intolerant society does not brook dissent. An authoritarian
regime cannot tolerate expression of ideas which challenge doctrines and
ideologies in the form of writings, plays, music or paintings. Intolerance is
utterly incompatible with democratic values. This attitude is totally
antithetical to our Indian Psyche and tradition. It must be realised that
intolerance has a chilling, inhibiting effect on freedom of thought and
discussion. The consequence is that dissent dries up. And when that happens
democracy loses its essence.15
116. Our Constitution by way of Article 19(1) which provides for freedom of
thought and expression underpins a free and harmonious society. It helps to
cultivate the virtue of tolerance. It is said that the freedom of speech is the
matrix, the indispensable condition of nearly every other form of freedom. It is
the wellspring of civilization and without it liberty of thought would
shrivel.16
117. Every time an artist portrays something different, something which is an
unpopular view point, it may accompany discomfort and unpleasantness but that in
itself cannot be a ground to curb the artistic freedom and quickly go on to
label it as obscene. There might be people who may actually get offended by
those of Hussain's paintings or others but the right course of action for them,
is to simply shrug it off or protest peacefully. In my considered view,
criticism of art may be there. Rather, there are many other more appropriate
avenues and fora for expression of differences of opinion within a civil
society. But criminal Justice system ought not to be invoked as a convenient
recourse to ventilate any and all objections to an artistic work. It should not
be used as a mere tool in the hands of unscrupulous masters which in the process
can cause serious violations of the rights of the people especially taking into
consideration the people in the creative fields. Such a pernicious trend
represents a growing intolerance and divisiveness within the society which pose
a threat to the democratic fabric of our nation. It would be relevant to
reproduce the observations made by Markandey Katju J. in Himsa Virodhak Sangh v.
Mirzapur Moti Kuresh Jamat and Ors. where laying
stress on the importance of tolerance, the court gave the historical
illustration of Emperor Akbar's tolerance during his reign. This case revolved
around the resolutions taken by the State Government and the Ahmedabad Municipal
Corporation for closure of the municipal slaughter houses during the period of
Paryushan festival of the Jains that allegedly violated the fundamental right to
trade of the respondents.:
These days unfortunately some people seem to be perpetually on a short
fuse, and are willing to protest often violently, about anything under the sun
on the ground that a book or painting or film etc. has "hurt the sentiments" of
their community. These dangerous tendencies must be curbed. We are one nation
and must respect each other and should have tolerance.
Thus, the practice of tolerance in our multi-religious, multi-cultural nation
must be regarded as a fundamental duty of every citizen and must be actively
encouraged and performed if we are to make our pluralist democracy a living
robust.17
118. In this regard, the role of the magistrates and judicial scrutiny in
protecting individual rights and freedoms and promoting constitutional values is
not discretionary but obligatory. In a constitutional democracy wedded to and
governed by the rule of law, responsibilities of the judiciary arouse great
expectations.18 Justice Frankfurt once remarked:
It is not a printed finality, but a dynamic process. Its applications to
the actualities of Government is not a mechanical exercise, but a high function
of statecraft.
Thus, a magistrate must scrutinise each case in order to prevent vexatious
and frivolous cases from being filed and make sure that it is not used a tool to
harass the accused which will amount to gross abuse of the process of the court.
Only in appropriate cases should a private complaint case proceed further
without a prior investigation by the police consequent upon the direction of the
Magistrate Under Section 156(3) of the said Code in the matter. Especially
taking into account the recent amendment to Section 202 of the said Code, a
Magistrate should postpone the issue of process against the accused where the
accused is residing at a place beyond the area in which he exercises
jurisdiction. He may postpone the issue of process against the accused and
either enquire himself into the case or direct investigation to be made by the
police or by such other person as he deems fit, for the purposes of deciding
whether or not there is sufficient ground for proceeding Under Section 204 of
the Code. He must examine the nature of allegations made in the complaint and
the evidence both oral and documentary in support thereof and may even himself
put questions to the complainant and his witnesses to elicit answers to find out
the truthfulness of the allegations or otherwise and then examine if any offence
is prima facie committed by all or any of the accused as enunciated in Pepsi
Foods Ltd.'s Case (Supra) and Naganagouda Veeranagouda Patil & Anr.'s Case
(Supra).
119. The general principles laid down of the duties to be performed by the
Magistrate before issuing summons are all the more applicable in matters
pertaining to art, cinema, writings etc. to prevent any unnecessary harassment
of persons from the creative fields where liberal thought processes permeate. We
have had the scenario of painters, actors, writers, directors and theatre
personalities being dragged to court on account of a mechanical exercise of
issuance of summons ignoring the pressures created on such persons implicit in
the process of issuance of summons. The result would be that that apart from the
harassment element there would be growing fear and curtailment of the right of
the free expression in such creative persons. This is hardly a desirable or an
acceptable state of affairs.
120. In the end, it may be said that education broadens the horizons of the
people and means to acquire knowledge to enhance one's ability to reason and
make a sound judgment. However, when one is instructed to only view things in a
certain manner, regardless of truth and facts, this is actually a form of
programming - not education.19 There are very few people with a gift to think
out of the box and seize opportunities20 and therefore such peoples' thoughts
should not be curtailed by the age old moral sanctions of a particular section
in the society having oblique or collateral motives who express their dissent at
the every drop of a hat. The society instead should be engaged in more
meaningful activities which would go to show the importance of education over
plain literacy.
121. In view of the aforesaid, the summoning orders and warrants of arrest
issued against the petitioner in the complaint cases are quashed and the
revision petitions filed against them are allowed leaving the parties to bear
their own costs.
Jurisdiction
122. During the course of the hearing, the learned Counsel for the parties
were even confronted with a general question as to which court would be
considered as a competent court having the jurisdiction to try the matter
particularly when the nature of the case is like the present one where the
impugned painting uploaded on the website, accessible to people across the
globe, was being viewed by different people/complainants across the country who
in turn got offended with such painting and filed their complaints at various
places in India, especially keeping in mind the vexatious and the frivolous
complaints which can be filed as an instrument to harass the accused. In the
present case, the petitioner is a celebrated artist who can afford the costs
borne out of such litigation but what about those who are not in a position to
expend that much of an amount and are unnecessarily foisted with such liability
and harassment.
123. Learned ASG accepted and submitted that as such our Criminal Code does
not deal with such jurisdictional aspect directly and submitted that the answer
only rested in the power conferred to the Supreme Court of India under Section
406 of the said Code which procedure has been adopted in the present case and
reads as under:
406. Power of Supreme Court to transfer cases and appeals. (1) Whenever it
is made to appear to the Supreme Court that an order under this section is
expedient for the ends of justice, it may direct that any particular case or
appeal be transferred from High Court to another High Court or from a Criminal
Court subordinate to one High Court to another Criminal Court of equal or
superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of
the Attorney General of India or of a partly interested, and every such
application shall be made by motion, which shall, except when the applicant is
the Attorney-General of India or the Advocate-General of the State, be supported
by affidavit or affirmation.
(3) Where any application for the exercise of the powers conferred by this
section is dismissed, the Supreme Court may, if it is of opinion that the
application was frivolous or vexatious, order the applicant to pay by way of
compensation to any person who has opposed the application such sum not
exceeding one thousand rupees as it may consider appropriate in the
circumstances of the case.
124. The sum and substratum of the his submissions was that Chapter XIII of
the Criminal Procedure Code, 1973 governs the law relating to the jurisdiction
of courts with respect to inquiries and trial and under Section 177 of the said
Code, every offence shall ordinarily be inquired into and tried by a court
within whose local jurisdiction it was committed. Section 178 provides that when
it is uncertain in which of the several local areas an offence was committed or
where an offence is committed partly in one local area and partly in another or
is a continuing one and continues to be committed in more local areas or one or
consists of several acts done in different local areas, in such cases then it
may be tried and inquired by a court having jurisdiction over any of such local
areas.
125. Section 179 of the Code reads as follows:
179. Offence friable where act is done or consequence ensues.-When an act
is an offence by reason of anything which has been done and of a consequence
which has ensued, the offence may be inquired into or tried by a Court within
whose local jurisdiction such thing has been done or such consequence has
ensued.
126. As per Section 179 of the Code, in case of an act which is an offence
because of the ensuing consequences either the Court where the act was committed
or where the consequences ensued will have jurisdiction. Under the above
provision, it is not necessary to prove that things done must necessarily be an
offence, as the conjunction "and" used in this section suggests that the act
contemplated becomes an offence on account of the cumulative effect of the
things done and the consequences ensued. In Ashok v. State of U.P 2005 Cri L.J.
2324 where a leader of a political party made insulting remarks against a
particular religious community in an interview to weekly magazine having all
India circulation, the Court held that the Courts either in the place where
interview was given or in the place where consequences of these interviews
ensued, had jurisdiction to try the offence. In S. Bangarappa v. Ganesh Narayan
1984 Cri L.J. 1618 where defamatory statement made in press conference were
published in the newspaper in the same place and on the next day, in a newspaper
in a different place, it was held that the Court in second place had the
jurisdiction to try the offense.
127. Section 186 of the said Code provides that in cases where two or more
courts have taken cognizance of the same offence then the High Court will
resolve the doubt relating the jurisdiction of the one of those courts to
proceed with the matter in the following manner:
a. where the courts are subordinate to the same High Court, that High
Court;
b. where the courts are not subordinate to the same High Court, then the
High Court within whose appellate jurisdiction the proceedings were first
commenced.
128. In Kuljit Singh v. CBI 2000 CriLJ 3681, a case was registered based on a
report from the Indian Ambassador in Greece regarding the incident of a high sea
tragedy on the night intervening 24/25 December 1996 in which 170 Indians were
drowned. The Central Government entrusted the matter to CBI for investigation
which charge-sheeted the accused persons on 8.9.1997 and the Chief Metropolitan
Magistrate took cognizance of the offence and issued process against the accused
persons. Thereafter, four separate criminal cases were also registered in
District Hoshiarpur, Punjab. The Court in this case applied Section 186 CrPC and
held that the CMM, Delhi would alone be competent to inquire into and try the
offences in question.
129. In my considered view, this particular aspect of jurisdiction fettered
within the parameters of scrutiny of Section 202 of the said Code as discussed
above derives its importance especially with the advent of the technological
explosion where a person sitting anywhere across the globe can get access to
what ever information he has been looking for just with a click of a mouse.
Therefore, it has become imperative that in this information age, jurisdiction
be more circumscribed so that an artist like in the present case is not made to
run from pillar to post facing proceedings. It was found necessary to at least
examine this aspect in view of the large number of incidents of such complaints
which had been brought to light by press resulting in artists and other creative
persons being made to run across the length and breath of the country to defend
themselves against criminal proceedings initiated by oversensitive or motivated
persons including for publicity. This however is not an aspect where a direction
can be issued since it is within the domain of appropriate legislation. The
learned ASG while assisting this Court fairly stated that he would advice the
Government to take steps by way of appropriate legislative amendments as may be
proper keeping in mind the balancing of interest between the person aggrieved
and the accused so as to prevent harassment of artists, sculptors, authors,
filmmakers etc. in different creative fields. I say nothing more but hope that
this aspect would get the attention it deserves and the legislature in its
wisdom would examine the feasibility of possible changes in law.
Epilogue
130. A liberal tolerance of a different point of view causes no damage. It
means only a greater self restraint. Diversity in expression of views whether in
writings, paintings or visual media encourages debate. A debate should never be
shut out. 'I am right' does not necessarily imply 'You are wrong'. Our culture
breeds tolerance- both in thought and in actions. I have penned down this
judgment with this favorent 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.