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Laws can?t regulate artistic imagination

The freedom of speech and expression, protected under Article 19 of our Constitution is being constantly challenged.

india Updated: Aug 10, 2006 22:13 IST

Creative imagination knows no bounds. That is the biggest challenge for lawmakers trying to define the thin line separating the acceptable from the offensive. When does the artistic impulse cross the boundary into blasphemy, immorality, obscenity or even pornography?

The freedom of speech and expression, protected under Article 19 of our Constitution is being constantly challenged. It is also “reasonably” restricted by laws covered under the Indian Penal Code (IPC). In a 2004 judgement, the Supreme Court (SC) held that free speech means speech hedged in by all the laws against defamation, blasphemy and sedition.

In a disturbing trend, self-appointed guardians of public morality are impos ing their own restrictions on imagination and behaviour. It is open season on issues ranging from homosexuality and promiscuity to art, literature, cinema, theatre, Sania Mirza’s skirts, Valentine’s Day and so on. While cinemas in Gujarat refused to screen Fanaa for Aamir Khan’s remarks on the Narmada dam, Khushboo’s comments on pre-marital sex were liberally construed as an affront to Tamil culture.

A 1969 Supreme Court judgement in the Udeshi case held that the term ‘obscenity’ was ‘really not vague’. Yet it provided six different yardsticks, including the deliciously vague “ that which depraves and corrupts those whose minds are open to such immoral influences."

Shekhar Kapur’s Bandit Queen invoked revulsion, pathos and charges of obscenity in equal measure. Dismissing a peti tion to ban the movie, the SC held that certain ‘offensive’ scenes were essential to portray the degradation of women. This reinforced the Udeshi judgment that had held that sex and nudity had to be considered in the context of the artistic and literary merit of the entire work. Such ‘merit’ remains contested.

With Indian filmmakers experimenting with bolder themes and genres, new objections are being heaped on this medium. While upholding pre-censorship of films in the landmark KA Abbas case of 1970, the SC held that our standards must not be reduced to a level where the protection of the most depraved determines what the morally healthy cannot view or read.

Tampering with religious symbols and beliefs is often equated with blasphemy. While the Islamic world was outraged over denigrating cartoons of the Prophet, some Hindus in India were enraged at MF Hussain’s nude depiction of Sita and the goddess Saraswati. In a 1957 judgement the SC upheld the validity of Section 295A of the IPC for penalising only those who “intend” to deliberately “insult” or outrage religious sentiments. There is no standard for measuring such intent.

Some state governments banned the movie The Da Vinci Code, fearing a “breach of the peace”. What is worrying is the failure of these governments to fulfil their obligations toward Article 19, as is the reliance on a religious body for evaluation of a fictional work. Similarly, the vetting of Rang De Basanti by the Defence Minister enlarged the scope of official censorship, in an age where countries like the US and Sweden have done away with it altogether.