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This article raises questions about the observations of Indian courts which have been generally liberal in preserving individual freedoms vis-à-vis the rights of the majority religion. Could the defenders of artistic freedom, have inveigled the courts into delivering ill-conceived judgements by speciously citing mischievous evidence? In the process were the courts oblivious to pertinent alternative views on the matter?
There was a time when judicial pronouncements were characterized by the erudition and scholarship of the judges in quoting chapter and verse, and precedents in jurisprudence that they are based on. In Shakespeare"s "The Merchant of Venice", both Shylock and Portia exclaim: "A Daniel come to judgement!" Could you imagine that the Delhi High Court judgement about which this article primarily deals with, was anchored on an internet blog posted by a fourth year law student in Bhopal?
Did the Delhi High Court grant M. F. Hussain amnesty?
Did Justice Sanjay Kishan Kaul of the Dlehi High Court grant amnesty for all of M. F. Hussain"s paintings? If you watched English news channels on the day the judgement was delivered or read English newspapers the next day or read references to the judgement in articles / columns since, you should be excused for concluding that Justice Kaul did so. Let us examine the facts:
In point of fact, the judge held that in his
"considered view, the alleged past misconduct of the petitioner cannot have any bearing on the present case ... 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 ... 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." (Para 103)
The last sentence in Justice Kaul"s verdict (in the criminal revision petition No. 114 / 2007 of the Delhi High Court) came as manna from heaven for the secularists. Justice Kaul ended his 29-page judgement with the remark:
"A painter at 90 deserves to be in his home painting his canvass!"
The following observation of the judge must have made their day for them, for was it not one of the arguments the left-liberal intellectuals proffered in support of Hussain all along?
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." (Para 107)
In the instant case, firstly, the judge allowed the criminal revision petition and dismissed summons and warrants issued against M.F. Hussain by the Additional Chief Metropolitan Magistrate, Delhi based on the plea of the petitioner (M.F. Hussain) 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 organization with which the petitioner claims to have no involvement..the petitioner at no point in time had given a title to the said painting" (Para 5).
Secondly, the judge discussed at length about the limits of artistic freedom and the applicability of allegations such as obscenity, prurience, pornography etc. within the meaning of the "Obscene Publications Act" or Sections 292, 294 and 298 of the IPC, and specifically sub-section (2) of Section 292, attributed to the painting that was the subject of the instant litigation. The judge delved deep into the question of
"..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." (Para 110)
Thirdly, in view of a number of similar criminal complaints pending in various local courts the judge examined the applicability of jurisdiction of courts especially in cases where
"..an artist like in the present case is not made to run from pillar to post facing proceedings..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...." (Para 129)
As eighteen of the twenty references cited in the judgement were from internet sources it is unfortunate that the following escaped the honourable court"s attention:
Freedom of religion and other beliefs. (1994). Otto-Preminger-Institut v. Austria, (13470/87)  ECHR 26 (20 September 1994).; and
Otto Preminger Institute V Austria. (1994). Otto Preminger Institute v. Austria. ARTICLES: 10; 26..
These refer to a case very similar to that of Hussain"s. The case was adjudicated in the Innsbruck regional court and the Innsbruck Court of Appeal (the Austrian equivalents of our subordinate and high courts) and finally dealt with by the European Court of Human Rights (corresponding to an appeal in our Supreme Court). See "Artistic Freedom and Social Responsibility", listed in the references below.
In the case of Otto Preminger Institute v. Austria, the Austrian Courts made interesting observations about artistic freedoms which flow as corollaries of the right to freedom of speech. The trial court observed that
"..Artistic freedom cannot be unlimited. The limitations on artistic freedom are to be found, firstly, in other basic rights and freedoms guaranteed by the Constitution (such as the freedom of religion and conscience), secondly, in the need for an ordered form of human coexistence based on tolerance, and finally in flagrant and extreme violations of other interests protected by law....."
The Innsbruck court of Appeal held that artistic freedom was,
"..necessarily limited by the rights of others to freedom of religion"; indignation was justified to attract penal provisions when "..offended..the religious feelings of an average person with normal religious sensitivity" and that "the whole derision of religious feeling outweighed any interest the general public might have..."
And finally the 9-member commission of the European Court of Human Rights in its 6-3 judgement held that
"..whoever exercises the rights and freedoms [enshrined in the first paragraph of that Article (10)] undertakes "duties and responsibilities". Amongst them, in the context of religious opinions and beliefs, may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. This being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that any "formality", "condition", "restriction" or "penalty" imposed be proportionate to the legitimate aim pursued."
The dissenting judges, while holding that the Article 43 of the "Convention for the Protection of Human Rights and Fundamental Freedoms (Convention) does not guarantee religious freedoms, nonetheless agreed that:
".it must be accepted that it may be "legitimate" for the purpose of [Article 10] to protect the religious feelings of certain members of society against criticism and abuse to some extent; tolerance works both ways and the democratic character of a society will be affected if violent and abusive attacks on the reputation of a religious group are allowed. Consequently, it must also be accepted that it may be "necessary in a democratic society" to set limits to the public expression of such criticism or abuse."
Fallacy, ignorance - or mischief!
The fallacy, ignorance - or mischief - of western scholars in interpreting the Shiva Linga as a phallic symbol has unfortunately been swallowed hook line and sinker by left-liberal commentators without an understanding of our scriptures or the Sanskrit language or both. Such depraved / perverse interpretations are standard staple for debating warriors in the left dominated universities like the JNU. One looks askance when they become part of judgements pronounced by the higher judiciary while adjudicating in momentous matters, especially when the judgement seems to be anchored on such interpretations or when such interpretations seems to form one of the major pivots of the judgement:
"..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." (Para 3)
Did the amicus curie or other legal officers who assisted in the case mislead the court by placing before it material with an ideological slant, screening out others?
The Sanskrit word Linga simply means a "mark" or "sign". Vaman Shivram Apte"s dictionary of Sanskrit has seventeen definitions of the term. The following are some of them.
. The image of a god
. A symptom or mark of disease
. A spot or stain
. A means of proof, a proof, evidence
. The effect or product which evolves from a primary cause
. The concept of grammatical gender
An example of the use of the word Linga from the Bhagavat Gita, may cited here: Arjuna prays Bhagavan Sri Krishna to reveal him the signs / marks / symptoms of a man who has risen above the three Gunas (the three qualities, Sattva, Rajas, Tamas), he uses the word Lingais (plural form of Linga) as a synonym for signs / marks / symptoms.
"Kair lingais trin gunan etan | atito bhavati prabho.." (14.21)
A few authoritative translations of the sloka are quoted below:
"O my dear Lord, by what symptoms is one known who is transcendental to those modes? What is his behaviour? And how does he transcend the modes of nature? " (Bhaktivedanta Swami Prabhupada, A.C., His Divine Grace, Bhagavad-Gita As It Is, Collier Books, New York, 1972, p.684-5)
"O Lord, by what signs is one (known) who has gone beyond these three qualities?" (Gambhirananda, Swami)
"By what marks is he recognized, who has transcended these three qualities, O Lord?" (Winthrop, Sargeant)
"What are the marks of him who has risen above the three Gunas, and what his conduct? And, how Lord, does he rise above the three Gunas?" (The Bhagavadgita or The Song Divine, Gita Press, Gorakhpur, 1998, p.140-1)
The following example of the word Linga in philosophy is from the Sankhya-Karika as translated in: Sarvapalli Radhakrishnan and Charles A. Moore. A Sourcebook in Indian Philosophy. (Princeton University Press: Princeton, New Jersey, 1957; Twelfth printing 1989) ISBN 0-691-01958-4, p. 428." which describes the role of attributes in recognition of objects perceived by the senses:
"Perception is the ascertainment of objects [which are in contact with sense-organs]; inference, which follows on the knowledge of the characteristic mark (linga) [i.e., the middle term] and that which bears the mark...." (Cited in Wikipedia encyclopaedia)
Or look at the following aniconic interpretation of the (Shiva) Linga as a conceptual confluence of the holy triumvirate of the Hindu dharma:
"Shivalinga consists of three parts. The bottom part which is four-sided remains under ground, the middle part which is eight-sided remains on a pedestal and the top part which is actually worshipped is round. The height of the round part is one-third of its circumference. The three parts symbolize Brahma at the bottom, Vishnu in the middle and Shiva on the top. The pedestal is provided with a passage for draining away the water that is poured on top by devotees. The Linga symbolizes both the creative and destructive power of the Lord and great sanctity is attached to it by the devotees." (Bansi, Pandit Hindu Dharma cited in Wikipedia encyclopaedia)
A.L. Basham a doyen of Indian historiography worshipped by the left-liberal historians has this interpretation of "Lingam" as a symbol of Shiva. His reference to "a cult order" might have been picked up from an earlier Western scholar, but in any case this seems to have put an indigenous stamp on exogenous chicanery:
"... Shiva was and still is chiefly worshipped in the form of the Linga, usually a short cylindrical pillar with rounded top, which is the survival of a cult older than Indian civilization itself.... The cult of the Linga, at all times followed by some of the non-Aryan peoples, was incorporated into Hinduism around the beginning of the Christian era, though at first it was not very important." (Wikipedia encyclopedia)
For Swami Dharmananda a great saint and practitioner of Yoga there is a mysterious power in the Linga, its shape has been designed to induce concentration of the mind.
"Just as the mind is focused easily in crystal-gazing, so also the mind attains one-pointedness, when it looks at the Linga. That is the reason why the ancient Rishis and the seers of India have prescribed Linga for being installed in the temples of Lord Shiva." (Wikipedia encyclopedia)
Our scriptures are replete with instances of the worship of Shiva in the form of Linga as a means for acquisition of divine knowledge or powers or as an invocation for the triumph of good over evil. For example, in the epic Mahabharata, the great warrior Arjuna worshipped Shiva in the form of Linga for acquiring the Pashupatasthra.
In the epic Ramayana Ravana, who was a great Vedic scholar worshipped Shiva in the form of a Linga to present his mother with the Atmalinga. Would an erudite Vedic scholar be as depraved / perverse as to present his mother with a phallic symbol?
In the same epic, Sri Rama performs prathistha (installation) of a Shiva Linga at Rameswaram (hence the name) before embarking on an odyssey to defeat Ravana and liberate his divine consort Sri Sita held captive by him.
Bhakt Markandeya and numerous other sages worshipped the simplest looking Linga. In order to abstain from all materialism and attain spirituality, the rishis used to retire to forests and use a lump of soil as a tool to help them concentrate on the Supreme Being. They used the Linga as a symbol to relate to cosmic energy through meditation.
Defenders of Hussain have often pointed out that promiscuity was widely prevalent in Indian social life and found its reflection in erotic art. In support of this view they cite erotic bas-reliefs in temple architecture and Vatsayana"s Kamasutra. Did the bas-reliefs and murals in temple architecture reflect promiscuity in social life or were they a necessary social corrective? Was the Kamasutra by the sage Vatsayana a text book similar to anatomy and physiology taught to medical students as a part of their curriculum or was it pornography? The views of western scholars on these subjects were as far removed from reality as they were on the subject of the Shiva Linga and as gullibly accepted without scrutiny by our left-liberal intellectuals.
Finally, Hussain pleaded that "in his art nudity was used as an expression of purity"! In the past many commentators wondered if for Hussain "nudity is an expression of purity" why does he always choose Hindu subjects for his expressions of purity? Does he consider there is no purity elsewhere or in his vicinity?
M.F Hussain approached the Supreme Court with a plea to consolidate criminal cases related to private complaints filed in lower courts in Bhopal and Indore (Madhya Pradesh), Pandharpur (Mahrastra) and Rajkot (Gujrat) against a nude painting allegedly of Bharat Mata. Accordingly the Supreme Court consolidated the cases and transferred them to the court of the Additional Chief Metropolitan Magistrate, Delhi, who issued summons to Hussain for a trial of various offences u/s 292 / 294 / 298 of the IPC. Notices were also issued to the petitioners who filed the original petitions in various lower courts.
Following this Hussain filed a revision petition in the Delhi High Court. Only one of the original petitioners sought to be heard in the proceedings in the Delhi High Court and was allowed to do so. This is understandable because not everyone who is pained by Hussain"s paintings is rich enough to fight litigation in far away Delhi nor can afford to retain high profile lawyers like Mr. Akhil Sibal to represent him.
While hearing the revision petition, the Delhi High Court granted exemption from personal appearance to Hussain. The court was assisted by the Additional Solicitor General of India as amicus curie.
In assaying the case the learned judge cited the works of various contemporary writers on art such as Love and Lust; An anthology of Erotic Literature from Ancient and Medieval India (2004, Pavan K. Verma and Sandhya Mulchandani; Harper Collins).
The judge has also taken into consideration material available in certain tell-tale internet sources such as Freedom of art under siege in India by Pallabi Ghosal; (excerpts from) Hindutva: Exploring the Idea of Hindu Nationalism (Jyotirmaya Sharma, Penguin Books India, Viking) and Prudes take charge in India, The Independent, (Jun 7, 1998, London).
The other sources relied upon by the judge to arrive at his conclusions are: Constitutional Underpinnings of a Concordial Society, The 21st Dr. Kailashnath Katju Memorial Annual Lecture by M.N. Venkatachaliah; Indian Democracy: Reality or Myth - We have pledges to fulfill, V.M. Tarkunde Memorial Lecture by Soli J Sorabjee, Former Attorney General of India and the proceedings in the case of Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and Ors. AIR1996SC1113.
The learned judge traced the history of Indian art forms from the second century till date and vetted precedents of similar cases from the jurisprudence of Canada, Australia, India, the UK and the USA with a view to
"..balancing the individual"s right to speech and expression and the frontiers of exercising that right.." and "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" (Para 8)
The judgement concedes that occasionally art ceases to be art and plunges into the forbidden, which is called obscene, vulgar, depraving, prurient, or immoral:
"..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 flesh4 but what needs to be determined is which art falls under the latter category.." (Para 4)
While the first amendment to the American constitution absolutely prohibits abridgement of the freedom of speech, US courts held that the test of obscenity had to be judged from the point of view of an average person and not the high priests of art / culture.
"..obscenity is not within the area of constitutionally protected freedom of speech or press..The Court further held that the rejection of obscenity was implicit in the First Amendment...The aspect of obscenity had to be judged from the point of view of an average person by applying contemporary community standards.." (Para 12)
In Australia, "there is no express right to free speech but only a limited implied guarantee of political discussion."
"..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..the target group of the publication..and whether or not the artwork has artistic merit...There is not, however, any absolute or partial defense of artistic merit." (Para 22)
In the Indian context, Article 19 (1) provides the right to freedom of speech (which is the basis for artistic freedom) and clause (2) of the article places reasonable restrictions on the right:
"..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.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. (Para 46)
"..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.." (Para 47)
The cases of the famous movies Bandit Queen (vide Bobby Art International and Ors. v. Om Pal Singh Hoon and Ors. (1996) 4 SCC 1) and "Schindler"s List" were cited, quite appropriately, as "may be" relevant for the present matter.
"..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 .. 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..in "Schindler"s List", the scene depicting rows of naked 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.. (Para 41)
In dealing with matters of art and literature the Indian courts have been generally constrained or lenient in applying the law:
"..The court in Sada Nand and Ors. v. State (Delhi Administration) ILR (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....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. (Para 40)
The judgement cites Justice Krishna Iyer, in the famous "Satyam, Shivam, Sundaram", case (Raj Kapoor v. State AIR 1980 SC 258), "dealing with a pro bono publico prosecution against the producer, actors and others":
"..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.." (Para 50)
However the Supreme Court felt that while dealing with litigation concerning matters of art it is necessary to maintain a delicate balance between freedom of speech and expression and upholding public decency and morality and that when public decency and morality are transgressed the transgressor forfeits the right to freedom of speech. More importantly in the delicate task of deciding what is artistic and what is obscene, the evidence of men of literature or others on the question of obscenity is not relevant.
"..The Apex court in Ranjit Udeshi"s case 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.....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.. (Para 54)
Similarly, courts have held that public interest is the test to be applied for the application of the right to free speech:
"..When there is propagation of ideas, opinions and information or public interests or profits, the interests of society may tilt the scales in favour 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..... (Para 66)
"..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... (Para 61)
However the instant case was judged based on certain technicalities in the applicability of the law namely Sections 292 / 294 / 298 of the IPC. The law mandates that for the offender to be eligible for punishment under these sections, the offence must have been committed in the presence / within sight of the complainant.
As to the contention of the counsel for the respondents,
"....The valuable and cherished 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 ..(Para 84)
"..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".. (Para 87)
"..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.. (Para 89)
The learned judge opined:
"..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..(Para 84)
"..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.. (Para 98)
The learned judge pays a great tribute to Hinduism not only as one of the world"s oldest religious traditions but also as the most liberal tradition that transcends definition. This could probably the reason why it can be easily offended with impunity!
"..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 nonexistence 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.7.." (Para 104)
The judgement selectively invokes Swami Vivekananda in defining the reason behind religious conflicts.
"..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.. (Para 105)
The plea for toleration, opposition to fundamentalism, the defense of free speech and the caveats for restrictions to free speech in the interest of public order are equally applicable to both sides of a disputed issue:
"..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 .. (Para 115)
"..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 .. (Para 116)
"..the criminal justice system.. 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.." (Para 111)
At about the time this article was written, the Supreme Court upheld the judgement of the Delhi High Court. A "Special Leave to Appeal" (Crl No. 6287/2008) moved by Dwaipayan Venkateshachrya Varkhedkar was "heard" and "dismissed" by a bench headed by the Hon"ble Chief Justice, K. G. Balakrishan and comprising Hon"ble Justices P. Sathasivam and J.M. Panchal. It was thus reported in the record of proceedings of the Supreme Court of India.
However the "secular" press reported that during the course of the hearing the Hon"ble Chief Justice K.G.Balakrishan, asked the complainant: "There are so many such subjects, photographs and publications. Will you file cases against all of them?" and added, "It is art. If you don"t want to see it, then don"t see it. There are so many such art forms in the temple structures."
This writer believes that Indian judiciary generally upheld the noblest principles of jurisprudence; protected the weak from depravity, excesses, and profligacy and on several occasions from the excesses committed by ruling oligarchies. As such this writer notes with sadness a lack of sensitivity to the sentiments of eight hundred and fifty million Hindus in the Hon"ble Chief Justice"s remarks. This writer most humbly wishes the Hon"ble Chief Justice and the other Justices consider the points raised in the two sections of this article named "Alternative Views" and "Fallacy, ignorance - or mischief!"
The quintessence of Indian secularism in its zeitgeist is not in separating the state from religion as the word originally connoted but in opposing Hinduism, its philosophy and social mores. The mantra of Indian media who would rather wear "secularism" on its sleeve is to oppose any opposition of Hindu organisations - which for them come under the collective moniker of "the Sangh Parivar".
Therefore if Hindu organisations protest against M. F. Hussain"s paintings as derogatory of Hindu gods and goddesses, then the secular brigade must rush to his defence. Indian media dotingly refers to members of the Sangh Parivar as goons. For them, there are no goons in other religions and that is a fact. And every time there is a reference to religious fundamentalism (in other religions) the spectre of Hindu fundamentalism had to be invoked, in the name of balance!
(N.B.: Numbers in superscript refer to citations in the original judgement)
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References & Notes:
Artistic Freedom and Social Responsibility. (2007) Vox Indica June 2007, Accessible from:
Freedom of religion and other beliefs. (1994). Otto-Preminger-Institut v. Austria, (13470/87)  ECHR 26 (20 September 1994). Accessible from:
M. F. Hussain Vs. Ajay Singh Naruka, Dwaipayan V. Varkhedkar and Raj Kumar Pandey , Criminal Revision Petition NO.114/2007 (2008), May 8, 2008, Accessible from: Otto Preminger Institute V Austria. (1994). Otto Preminger Institute v. Austria. ARTICLES: 10; 26. Accessible from: