Content Regulation / Censorship, Gender Expression, Indecency / Obscenity
The State v. Momar Sowe and Alieu Sarr
Closed Expands Expression
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The High Court of Delhi held that the “Bharat Mata” painting by Maqbool Fida Husain was not obscene under section 292 of the Indian Penal Code. The appeal was brought by private complaints, filed in various parts of India, that were against the famous painter Maqbool Fida Husain and his painting titled “Bharat Mata” (Mother India), which was advertised in an online charity auction for earthquake victims. The court reasoned that art was an important tool of expression, but that Article 19(2) of the Indian Constitution allowed limitations on freedom of expression to be restricted on the grounds of public decency and morality. However, by reviewing, among other things, the intent of the artist and the idea behind the painting, the court held that the painting did not violate section 292 of the IPC.
Maqbool Fida Husain is a famous painter. One of his paintings, later titled “Bharat Mata” (Mother India), depicts India in the form of a naked woman. Husain sold it to a private collector in 2004. In 2006, the painting was advertised in an online charity auction for earthquake victims. The advertisement of the painting led to protests, and private complaints were filed in various parts of India. The Supreme Court consolidated and transferred the matter to Delhi. The trial court in Delhi issued summons to the Husain for offenses under section 292 of the Indian Penal Code (IPC), which punishes distribution of obscene materials, section 294 of the IPC, which punishes obscene acts and songs, and section 298 of the IPC, which punishes expression intending to hurt religious sentiments.
It was also alleged that Husain was liable under section 500 of the IPC, which punishes defamation, and under the Prevention of Insults to National Honour Act and the Emblems and Names (Prevention of Improper Use) Act because his painting depicted Ashoka Chakra, a symbol that forms part of the Indian national flag and national emblem, in an objectionable manner. Husain filed the revision petition against this trial court order.
In this decision, Sanjay Kishan Kaul, J. considered that art is an important tool of expression. Article 19(2) of the Indian Constitution allows freedom of speech and expression to be restricted on the grounds of public decency and morality. Obscenity that is offensive to public decency and morality is not protected. As per section 292 of the IPC, a material is 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 [it]” (para. 31). Considerations to be kept in mind while balancing artistic freedom with free speech with respect to the question of obscenity should include: (i) contemporary mores and national standards; (ii) where art and obscenity are mixed, art must be preponderating and obscenity must be trivial; (iii) the test should be that of an ordinary person of common sense and prudence; and (iv) if the material is for public interest, it may be protected under the right to free speech, but obscenity without a preponderating public interest is not protected. The High Court further found that where question as to nudity or semi-nudity arises, the particular postures and surrounding circumstances must also be looked into, as should the perspective of the artist, and the idea that art “should not be seen in isolation without going into its onomatopoetic meaning.”
Based on this, the Court concluded that the painting did not violate section 292 of the IPC. Even if some persons may have felt offended at seeing Mother India naked, that was not sufficient to constitute obscenity. Even if some persons may have considered it more appropriate to clothe the woman or may hold more conservative views, this does not suffice to hold Husain criminally liable. The Constitution is based on values of liberty, equality, and fraternity, requiring tolerance of other views. Therefore, the courts should refrain from applying their liberal or conservative views, but it is better to err on the side of liberal interpretation. A democracy must provide freedom to dissent and to express thoughts we may hate. Intolerance has a chilling effect on freedom of speech. While there may be other fora to express discomfort or criticism against artistic works, the criminal justice system cannot be relied upon to make such objections.
The Court also held that Husain was not guilty under section 294 of the IPC, which deals with prevention of obscene acts performed in public. The mere fact that this painting was uploaded on a website that could be accessed by any person was not enough to constitute an offense under this provision. The Court also held that Husain had no deliberate intention to hurt religious feelings and was, therefore, not guilty under section 298 of the IPC. Offense under section 500 of the IPC, which deals with defamation, was not made out since there was no imputation capable of harming the reputation of the complainant. With respect to the Ashok Chakra, the Court concluded that its placement in the painting was not such that would show disrespect.
With respect to jurisdiction in cases like this where the impugned material is uploaded online, the Court suggested that a petitioner should not be made to run across the country to defend against various charges. The Court suggested that appropriate legislation be passed to address this issue.
The Supreme Court of India later refused to entertain a petition seeking to prosecute Husain for hurting Indian sentiments, holding that the painting was a “work of art.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
In this case, the High Court considered the balance between artistic expression and its effect on public decency and morality. It then took a liberal stand and suggested tolerance for diverse views to give effect to the right to free speech and freedom of expression.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
High Court decisions are binding on courts within their jurisdiction.
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