A nation that takes immense pride in being a democracy had silenced one young dissenting woman.

But then, mightier, more renowned Indians have had to zip up before. So this is hardly news. One of the most illustrious cases was that of India’s most famous modern artist, Maqbool Fida Hussain, who died in exile following years of litigation and threats of physical harm by Hindutva goons over his paintings.

In a beautifully-worded verdict, the Delhi high court in 2008 rubbished all charges against Hussain and his paintings. The judgment by justice Sanjay Kishan Kaul, which starts off with Pablo Picasso’s famous words—“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”—makes for a riveting read.

While it largely deals with art and the creative fields, the judgment touches upon a variety of issues related to freedom of expression.

The complete text (pdf) ought to be a must-read for Indians. All the more so if you are the hyper-anything kind—nationalist, sensitive, or prudish. Trolls, the little-known ones as well as the high-fliers, must keep a bedside copy.

For the benefit of our readers, we have here a few pertinent excerpts:

• The paintbrush has become a powerful tool of expression as the pen is for some, and has thus occasionally come under the line of fire for having crossed the “Lakshman Rekha” and for plunging into the forbidden.
• There is a sharp distinction between constitution of United States of America and India. In the former, freedom of speech guaranteed is absolute and in the latter the constitution itself provides for certain exceptions. The duty cast upon the courts in India is to ensure that the state does not impose any unreasonable restriction.
• The constitution of India, by virtue of Article 19 (1) (a), guarantees to its citizen the freedom of speech and expression. India is also a party to the International Covenant on Civil and Political Rights and, therefore, bound to respect the right to freedom of expression guaranteed by Article 19 thereof, which states: a) Everyone shall have the right to hold opinions without interference. b) Everyone shall have the right to freedom of expression.
• Nevertheless, there is an inseparable connection between freedom of speech and the stability of the society. This freedom is subject to sub-clause (2) of Article 19, which allows the state to impose restrictions on the exercise of this freedom in the interest of public decency and morality.
• …it is most often ideas which question or challenge prevailing standards observed by the majority that face the greatest threat and require the greatest protection…
• The supreme court in Gajanan Visheshwar Birjur v. Union of India (1994) observed as under: “Human history is witness to the fact that all evolution and all progress is because of power of thought and that every attempt at thought control is doomed to failure. An idea can never be killed. Suppression, can never be a successful permanent policy. Any surface serenity it creates is a false one. It will erupt one day…Thought control is alien to our constitutional scheme. To the same effect are the observations of Robert Jackson, J. in American Communications Association, v. Douds…with reference to the US Constitution: ‘Thought control is a copyright of totalitarianism, and we have no claim to it. It is not the function of our government to keep the citizen from falling into error; it is, the function of the citizen to keep the government from falling into error. We could justify any censorship only when the censors are better shielded against error than the censored’.”
• As was also pointed out by Mr. Justice Holmes in Abramson v. United States: “The ultimate good desired is better reached by free trade in ideas—the best test of truth is the power of the thought to get itself accepted in the competition of the market.”
• The apex court held that freedom of expression cannot be held to ransom, by an intolerant group of people.
• In Rangarajan v. P. Jagjevan Ram and Ors. (1989), while interpreting Article 19(2), this court borrowed from the American test of clear and present danger and observed: “Our commitment to freedom of expression demands that it cannot be suppressed unless the situations created by allowing the freedom are pressing and the community interest is endangered. The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. [In other words, the expression should be inseparably] like the equivalent of a ‘spark in a power keg’.”
• 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.
• The conundrum which has blocked the minds of a few today was given a riposte by Swami Vivekananda in the following words: “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.”
• India is one such pluralist society which acts a model of unity in the mosaic of diversities and has taught the world the lesson of tolerance…The standards of the contemporary society in India are fast changing and, therefore, now in this age of modernisation, we should more so embrace different thinking and different thoughts and ideas with open arms.
• Democracy has wider moral implications than mere majoritarianism. A crude view of democracy gives a distorted picture. A real democracy is one in which the exercise of the power of the many is conditional on respect for the rights of the few. Pluralism is the soul of democracy. The right to dissent is the hallmark of a democracy. In real democracy the dissenter must feel at home and ought not to be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanctions for his unconventional or critical views. There should be freedom for the thought we hate. Freedom of speech has no meaning if there is no freedom after speech. The reality of democracy is to be measured by the extent of freedom and accommodation it extends.
• Our greatest problem today is fundamentalism which is the triumph of the letter over the spirit.
• 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.
• 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 civilisation and without it liberty of thought would shrivel.
• It would be relevant to reproduce the observations made by Markandey Katju J. in Himsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat & Ors…: “These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book or painting or film etc. has “hurt the sentiments” of their community. These dangerous tendencies must be curbed. We are one nation and must respect each other and should have tolerance.”
• Thus, the practice of tolerance in our multi-religious, multi-cultural nation must be regarded as a fundamental duty of every citizen.
• A liberal tolerance of a different point of view causes no damage. It means only a greater self restraint. Diversity in expression of views…encourages debate. A debate should never be shut out. “I am right” does not necessarily imply “You are wrong.” Our culture breeds tolerance—both in thought and in actions. I have penned down this judgment with this favourent hope that it is a prologue to a broader thinking and greater tolerance for the creative field. A painter at 90 deserves to be in his home—painting his canvas!

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