Courts are not meant to be blind to the impact of the law and the consequences of its orders. If so, courts will inevitably become platforms for promoting cultural duels and divisive politics. The recent order of the Patiala house court that led to the seizure of two paintings by the MF Hussain signals such a situation.
The genesis of the dispute lies in one advocate visiting an art gallery and choosing to click photographs of two paintings she found offensive to her religious beliefs. She even took to social media to criticise such depiction of Hindu deities. After all, no good work of art has ever failed to provoke. However, the problem lies in the invocation of criminal law to counter artistic expression. When no FIR was registered on her complaint, the advocate filed a complaint before the Judicial Magistrate of First Class (JMFC) in Patiala House Court seeking a direction for registration of an FIR.
While on January 22, the final order of the JMFC records that no cognisable offence has been made out, an earlier order dated January 20 directing the police to seize the two paintings calls for immediate reconsideration. The order passed by the JMFC is devoid of any reasons and does not even attempt to discuss the need for seizing the paintings. It merely states that for reasons mentioned in the application, the police are directed to seize the paintings. The JMFC has chosen to take a limited view of the exercise as one for preservation of evidence alone.
I think that the Patiala House Court has been misled. What on the face of it seems like a harmless order for preservation of evidence is, in essence, an order for censorship of art. The order has led to the paintings being taken out of circulation and viewership while they were on display in a private art gallery. The Constitution views censorship of speech and expression very seriously, and it is only permissible in a narrow zone of reasonable restrictions for a legitimate State objective to be found in Article 19(2), that too if the need to censor the speech is found to objectively pass the test of proportionality. In its judgment in Indibility Creative Pvt Ltd vs State of West Bengal (2019), dealing with the ban on public screening of the Bengali film Bhobishyoter Bhoot, Supreme Court sums up the law on censorship of art: “Organised groups and interests pose a serious danger to the existence of the right to free speech and expression. If the right of the playwright, artist, musician or actor were to be subjected to popular notions of what is or is not acceptable, the right itself and its guarantee under the Constitution would be rendered illusory. … Those who disagree have a simple expedient: of not watching a film, not turning the pages of the book or not hearing what is not music to their ears.”
The Patiala House court failed to test the demand for seizure of the paintings against the test of proportionality. The register of the gallery and the CCTV footage collected are sufficient to establish that the paintings were indeed on display, so there is no need to seize the paintings to establish that fact for the criminal case. It is very common in our trial courts to find that powers bestowed by the Code of Criminal Procedure become the guiding light of judicial wisdom, belittling constitutional law deliberations to an academic exercise. This is most often the case when it comes to powers of search and seizure of electronic devices at the stage of investigation, almost giving the police a free hand. This practice betrays the rule of law, which must guide all state action, and leads to aberrations where censorship of art is implemented without even a judicial examination of the contesting right under Article 19(1)(a) and its corresponding reasonable restrictions.
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A private exhibition of a renowned artist’s works in a private art gallery would not otherwise have caused any controversy unless someone actively went looking for it. The magistrates who are the first sentinels of liberty must examine the genuineness of grievances, whether they organically arise or are manufactured to fuel political narratives. Private complaints are not a substitute for public interest litigations, otherwise, we run the risk of diluting the rigours of criminal law amidst political vigilantism. Quite ironically, while rejecting similar allegations of obscenity and hurting religious feelings for nude depiction of “Bharat Mata” by MF Hussain, the High Court of Delhi in 2008 had commented, “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.”
Trial courts must be wiser and bolder in their use of the Constitution and not allow the shackles of routine trial court procedure to overwhelm it. Picasso’s words ring loud: “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.”
The writer is a Delhi-based advocate
