By Dr Swati Jindal Garg
Any act of the mind that flows pure and free is art, for freedom is the soul of art. Going by this dictum, the Gujarat High Court in a recent judgment quashed an order of MS University (MSU), Vadodara, to debar Kundan Kumar Mahato, a student of Masters of Visual Arts of the Faculty of Fine Arts (FFA), for “objectionable” artworks in May last year.
Stating that FFA was known for its “open-mindedness” in fine arts “since the era of MF Husain”, and observing that the “role of gurus (teachers)” was more important, the Court rebuked MSU for conducting a “hasty and slipshod inquiry” without “taking the onus” of the incident which caused a ruckus on the campus on May 5, 2022.
The petition was filed by Mahato and heard by Justice Bhargav Karia who held that MSU had “singled out” the student without conducting a complete inquiry into the incident of May 5, 2022, when yet-to-be-identified persons had made viral the photographs of the objectionable artwork. The judge also considered the gravity of the objection presented by Mahato’s advocate Hitesh Gupta who said that despite being present at the University head office before 3 pm on May 13, 2022—as directed by MSU—his client was not given a chance to present his side before the officials.
Coming down heavily on the University, the Court asked: “What was the haste in debarring him? How can you debar him, when the faculty members have not been suspended? The fact-finding committee report of MSU is very clear that the student has not taken the photos that went viral. So, who took those pictures?”
The Court also asked about the status of the inquiries against the faculty members as well as the university’s inquiry into who made the photographs of a confidential exam viral. Stating that MSU’s replies to the nature of the inquiry had been dissatisfactory, the Court added: “A very rapid and slipshod inquiry is conducted… action can be taken only after all inquiries are conducted simultaneously, including that against the faculty. How can you single out the student? The artwork is a personal perception—it was not a public display. You (MSU) could have failed him in the internal exam stating that this is derogatory. It is not a major offence. You have to justify your action.”
Stating that universities cannot curtail freedom of artistic expression in this way, the Court allowed Mahato’s petition and ordered that he should be allowed to attend classes. Incidentally, Mahato had received a gold medal for his academic performance at BHU’s Bachelor’s course of Visual Arts from 2017-2021.
The artwork in question was created by Mahato for an internal exam scheduled on May 2, 2022. Even though he had immediately removed the artwork after being advised by his teachers, on May 5, a separate public display of artworks for second-year students was held, during which the photographs of Mahato’s artwork became public and created a furore and he was debarred. Mahato then approached the High Court wherein he relied on the report of the fact-finding committee, dated May 9, which had also held the faculty responsible for the ruckus. As per the committee report of May 9, 2022, the controversy took place due to a lack of monitoring and guidance by teachers.
This is not the first time that artistic expression has been under fire in India. Way back in October 1996, Bajrang Dal volunteers broke into Herwitz gallery in Ahmedabad and destroyed a number of rare and acclaimed paintings by MF Husain. It was said at that time that Husain had painted Goddess Saraswati in the nude and therefore, hurt religious sentiments. Some of his other paintings that had also been tagged as obscene were of Bharat Mata, naked Sita sitting on a long tail of Hanuman and Goddess Durga in the nude having sexual intercourse with a tiger, to name a few.
Similarly, on May 12, 2007, a final year student of the Faculty of Fine Arts at Maharaja Sayajirao University in Vadodara was arrested and charged under Sections 153A, 114 and 295 of the Indian Penal Code for promoting enmity between different groups on the grounds of religion, race, etc, through his paintings. He was denied bail and transferred to Central Jail, but released on bail after four days of imprisonment due to public protests.
Even then, the student’s arrest had raised many questions: Is an artist no longer free to depict what he/she likes? Like films, does Indian art also have to pass through a “Censor Board”? Can these paintings be classified as obscene, hurting religious sentiments and be immoral? And ultimately, who will be the judge to determine whether something is obscene or not?
Technically speaking, obscenity may be defined as something which, applying contemporary community standard, appeals to a prurient interest in sex; portraying sexual conduct in a patently offensive way and lacking any serious literary, artistic, political or scientific value. In India, “obscenity” has been defined under Section 292 of the IPC. After its amendment in 1969, obscenity was defined as that which is lascivious or appeals to prurient interest or which has the tendency to “deprave” and “corrupt” those who are likely to be exposed to it. Before its amendment, the provisions lacked any definition of obscenity.
The definition of obscenity came up first for consideration in the case of Ranjit D. Udeshi, wherein a person was convicted for selling the unexpurgated version of DH Lawrence’s book Lady Chatterley’s Lover. This case relied on the Hicklin Test as laid down in the 19th century by Chief Justice Cockburn in Rex vs Hicklin. The Hicklin Test defines obscenity as that which has a tendency to deprave and corrupt those whose minds are open to such immoral influences and into whose hands the material may fall.
The Supreme Court, in this case had, after much deliberation, declined to treat the work as a whole and instead chose to focus on the impugned passages, solely and exclusively. However, it went on to say that where art and obscenity are mixed, what must be seen is whether the artistic, literary or social merit of the work in question outweighs its obscene content.
However, in the case of Chandrakant Kalyandas Kakodkar, the Court refused to treat the passages alleged to be obscene in isolation and instead, stressed on the need to treat the impugned passages in the overall context of the work. It was stressed that the standards of contemporary society in India were fast changing. Adults and adolescents have available to them a large number of classics, novels, stories and pieces of literature which have a content of love, sex and romance. If a reference to sex by itself is considered obscene, no books can be sold except those which are purely religious.
Then came the ruling in Samresh Bose wherein it was said that the test to hold in our country (with regard to community mores) is that obscenity without a pre-ponderating social purpose or profit cannot have the constitutional protection of free speech and expression, and obscenity is treating sex in a manner that appeals to the carnal side of human nature.
Time and again, courts have come down heavily on “moral police” which try to curtail freedom of artistic expression. While some art works may cause discomfort and unpleasantness, that alone cannot be a ground to curb artistic freedom and ban it. If there is no freedom of expression, then the beauty of life itself is lost.
—The author is an Advocate-on-Record practising in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi