Law

Exploratory Analysis of Artistic Freedom and Restrictions on Free Speech

There is no uniform application of a strict standard of morality in adjudicating on artistic freedom. This is a more reactive approach, where the tendency of the courts is to wait for the damage to occur and then keep adding and subtracting to the principles of morality so as to suit the situation in hand. 

Author : Pranav Kaushal

INTRODUCTION (ARTISTIC FREEDOM AND ARTICLE 19)

“Without freedom, no art; art lives only on the restraints it imposes on itself, and dies of all other.”Albert Camus

Art in any form constitutes a key medium through which the information and ideas are imparted and received.  Art is explicitly highlighted as a form of protected expression under the international Law. As such, the right to freedom of artistic expression must be respected, protected and fulfilled by all the states in the same manner that other forms of expression are. On 9^th April 1980 James Baldwin in a conversation with Chinua Achebe posits that art has an abiding connection with society. He further stated that, “Art has a social purpose and art belongs to the people. It is not something that is hanging out there that has no connection with the needs of the man. Art is unashamedly, unembarassingly, if there is such a word as social. It is political, it is economical. The total life of man is reflected in his art.” Thus the true purpose of art as manifest in its myriad forms is to question and provoke. Art is an elemental sense which reflects a human urge to question the assumptions on which societal values may be founded. In questioning prevailing social values and popular cultures, every art form seeks to espouse a vision.  

IS ARTIST ENTITLED TO THE FULLEST LIBERTY?

Commitment to free speech involves protecting speech that is palatable as well as a speech we do not want to hear. Protection of the fundamental right of freedom of speech and expression is founded on the belief that the speech is worth defending even when certain individuals may not agree with you or even despise what is being spoken. The principle behind such a fundamental right is that in the heart of every democratic society there is a basic human right of freedom of speech and expression and its protection is a mark of civilised and tolerant society. The reason to defend freedom of speech and expression is both moral and instrumental. Moral defence of speech and expression is a conception of a person to the infringement of an individual’s dignity or autonomy either as a speaker, listener or both. While on the other hand Instrumental defence is based upon the notion of preserving freedom of speech and expression whether in terms of increased personal happiness, economic benefits or as a flourishing society.   

 By giving liberal construction to Article 19(1) (a) of the Indian Constitution one can easily deduce the interpretation which includes “Freedom of Art” which is known as the Artistic Freedom. But however the above freedom guaranteed under Article 19(1) (a) is not absolute and subject to reasonable restrictions.

SHOULD THERE BE LIMITATION ON ARTISTIC FREEDOM?

“I may not agree with what you say, but will defend to the death, your right to say it.” – Voltaire 

 Whether a society is ready to read a particular book and absorb what it says without being offended is a debate which has been raging for many years. It is the very heart of democracy that gives us the freedom to think and act differently. Implicit therein freedom is to react and respond to the same situation distinctly and differently. The very charm of democracy provides us that there can be multiple views, thoughts and expressions. One cannot expect everybody to express themselves in the same manner as others.

There has been freedom in the imagination of artists but limitation on their execution. Artists should not make any such art which will bother people, their emotions or sentiments. The freedom of speech and expression is the right to express one’s conviction and opinion freely, by words, writing, printing, gestures, signs, pictures or electronic media. This right also includes the right to propagate one’s view through the print media or through any communication channel; it further includes the right to acquire information and to disseminate it. The Supreme Court[1] with regard to rights guaranteed under Article 19(1) (a) made the following observation

“Democracy has wider moral implications than mere majoritarian. A crude view of democracy gives us 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 be nervously looking over his shoulder fearing captivity or bodily harm or economic and social sanction 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.”

In M.F Hussain v Raj Kumar Pandey[2] the court observed that “The work of must have any aesthetic or artistic touch and should not seem to have been taken with the sole purpose of attracting viewers who may have a prurient mind. In the other words, where obscenity and art are mixed, art must be so preponderating as throw obscenity into shadow or render the obscenity so trivial and insignificant that it can be have no effect and can be overlooked.”

FREEDOM OF SPEECH AND EXPRESSION UNDER INDIAN CONSTITUTION

India is a democratic country which follows the principle of rule of law which is an ineradicable principle of the civilised society. Liberty and security of the individual have always been at loggerheads. The question is do we need more liberty or more security? It is not easy to answer whether it is better to be free than secure or be secure rather than free. To explain this condition let’s take an example of a pendulum. Pendulum of preference should not swing in either extreme direction so that one preference compromises the other. A democracy which is sworn to transparency and accountability necessarily mandates the production of orders as it is the right of individuals to know. Fundamental rights guaranteed under Part III of the Indian Constitution is itself a qualitative connote wherein state has to act in the responsible manner to uphold the rights of the individuals guaranteed therein and not to take away those rights and freedom in an implied fashion or in casual and cavalier manner. Democracy in itself entails the free flow of information and there is normative expectation of every individual under the constitution as well under the natural law that no law should be passed in a clandestine manner.

The jurisprudence of protecting the medium of information and expression can be traced to the case of Indian Express v Union of India[3] wherein the court had declared that freedom of print medium is covered under the freedom of speech and expression. In Odyssey Communications Pvt.Ltd.v. LokvidayanSanghatana[4] it was held that “the right of the citizens to have the fundamental right of freedom of speech and expression is guaranteed under Article 19(1) (a) of the Indian Constitution which can be curtailed only under certain circumstances set out under Article 19(2) of the Indian Constitution.”

In Secretary, Minister of Information and Broadcasting Government of India v. Cricket Association of Bengal[5] the apex court “have recognised free speech as a fundamental right and has recognised the freedom of speech and expression over different media of expression. Therefore the freedom of speech and expression through the medium of internet is an integral part of Article 19(1) (a) and accordingly any restriction must be in the accordance of Article 19(2). At the outset, the term ‘reasonable’ is limited to the situation such as interest of sovereignty, integrity, security, friendly relations with the foreign country, public order, decency or morality, contempt of court, defamation or incitement to an offence.”[6]

PRINCIPLE OF PROPORTIONALITY AND FREEDOM OF ART: NEED TO ESTABLISH THE BALANCE BETWEEN THE BOTH

“The notion accepts the modern constitutional theory that the constitutional rights are related. This relativity means that the constitutional licence to limit those rights is granted where such limitation will be justified to protect public interest or the rights of others. The phenomena of both right and its limitation in the Constitution exemplify the inherent tension between democracy’s two fundamental elements.”  

It goes without saying that the government is entitled to restrict the freedom of speech and expression guaranteed under Article 19(1)(a) if the need be so, in compliance with requirement under Article 19 (2). When the nation is facing such adversity, an abrasive statement with the imminent threat may be restricted, if the same impinges upon the sovereignty, integrity of India or creates threat to the public security. Thus, the requirement is to have the balancing considerations which bring us to the principle of proportionality. In the case of K.S Puttaswamy v. Union of India[7] the court observed that, “Proportionality is an essential facet of the guarantee against the arbitrary state action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of law. The doctrine of proportionality is not a foreign to the Indian Constitution, considering the use of the word ‘reasonable’ under Article 19 of the Indian Constitution. Reasonable restrictions are indispensable for the realisation of freedoms enshrined under Article 19 as they are what ensure that enjoyment of rights is not arbitrary or excessive as to affect the public interest.” The apex court in the case of Chintaman Rao v. State of Punjab[8] held that “the phrase reasonable restrictions connotes that the limitation imposed on a person in the enjoyment of rights should not be arbitrary or of an excessive nature beyond what is required in the interest of the public.” In Modern Dental College and Research Centre v. State of Madhya Pradesh[9] the court held that no constitutional right can be claimed to be absolute in a realm where rights are interconnected to each other and limiting some rights in public interest must therefore be justified.

The Supreme court of Canada in R. v. Oakes[10], Chief Justice Dickinson was of the opinion that, “there are in my view three important components of the proportionality test. First the measure adopted must be rationally connected to the objective. Secondly the means should impair as little as possible, the right or freedom in question. Thirdly there must be proportionality between the effects of measure which are responsible for limiting the charter right or freedom and the objective which have been identified as of sufficient importance.

OBSCENITY, ARTISTIC FREEDOM AND JUDICIAL APPROACH

There are certain tests devised by the Supreme Court of India that are to be applied to the facts of each case. This is very difficult to do as answers to questions like what constitutes obscene, offensive and hate speech when and what kind of act shall be detrimental to community interest and to what extent vary from person to person. It is left to the subjective interpretation of the state authorities who more often than not arbitrarily slap criminal charges against citizens for offensive speech and any form of expression. Consequently our fundamental right to freedom of speech and expression is now at the benevolence of the state. There are general trends seen in the cases where the laws relating to obscenity and morality challenging the artistic freedom in motion pictures and broadcasting is that the courts have upheld the validity of these rules and regulations. However, the courts formulated standards of morality that are loosely based on the Hicklin Test but neither has overruled it nor have they distinguished it. In fact minimal reference is made to the test per se, even though they adopt similar standards. They have used aspects of average person test and community standards in interpreting provisions relating to morality in these legislations and the same has been discussed below.

In Perumal Murugan v. Government of Tamil Nadu[11] the court held that, “Art is often provocative and is not meant for everyone nor does it compel the whole society to see it. The choice is left with the viewer, the court observed that merely because a group feel agitated about it cannot give them a licence to vent their views in a hostile manner and the state cannot plead its inability to handle the problem of hostile audience. All writings, unpalatable to one section of the society, cannot be labelled as obscene, vulgar, prurient and immoral.”

In S. Khusbhoo v. Kanniammal[12] the case was pertained to the quashing of the cases filed against the Petitioner for remarks made by her on Pre-Marital Sex. The court observed that “a culture of responsible reading is to inculcated amongst the prudent readers. Morality and criminality are far being co extensive. An expression of opinion in favour of non dogmatic and non conventional morality has to be tolerated as the same cannot be a ground to penalize the author.”

In Sony Pictures v. State[13] the ban was imposed by the State of Tamil Nadu on the English Film, “The Da Vinci Code” and the same was challenged. The court observed that “when the state has a duty to prevent all threats of demonstrations and processions which amount to intimidating the right of free speech and expression, it cannot be plead its inability to handle breach of peace if when and it arises. Thus the order imposing ban on the film was quashed.”

In K.A Abbas v. Union of India[14] the case was related to the documentary “A Tale of 4 Cities” which was not given U Certificate against which a writ Petition was filed. It was held by the Court that “Pre-Censorship was correct as per the Constitution. The Court observed that the Standards of obscenity must not be at the level of the most depraved to determine what is morally healthy for a normal person. It is not the element of rape, leprosy and other social problems that should be censored; it is the manner in which such themes are handled.”

Maqbool Fida Hussain v Rajkumar Pandey[15] the case was regarding to the private complaint filed against the noted painter M.F Hussain for allegedly vilifying Hindu Gods and Goddesses through his art work. It was observed by the Supreme Court taking reference of the case (Samaresh Bose v. Amal Mitra)[16] that “the purpose of judging obscenity, the judge must first place himself in the shoes of the author in order to appreciate what the author really wishes to convey and thereafter he must place himself in that position of reader of every age group in whose hands the book may fall and then arrive at a dispassionate conclusion.” 

In Nandini Tiwari v Union of India[17] the case involved a writ petition filed to ban the Hindi Film “Finding Fanny” for using the word fanny. The writ petition was dismissed observing that “obscenity has to be judged from the point of view of an average person, by applying contemporary community standards. It was held that if a reference to sex by itself is considered to be obscene and not fit to be read by adolescents, the adolescents will not be in a position to read any novel and will have to read books which are purely religious.”

CONCLUSION

Hence the role of the judiciary in determining the standard becomes extremely important in developing the country’s free speech theory. In India, the standards keep varying from medium to medium. The trend keeps shifting across mediums and according to the circumstances in hand. There is no uniform application of a strict standard of morality in adjudicating on artistic freedom. This is a more reactive approach, where the tendency of the courts is to wait for the damage to occur and then keep adding and subtracting to the principles of morality so as to suit the situation in hand. 

A reactive approach, thus in comparison to a proactive approach, lacks clarity, minimum required elements of uniformity and varies from one medium of communication to the next. This is highly undesirable in a democratic country that such values of free speech as the highest pedestal of fundamental rights and which comes from a background of great historic and contemporary pool of artists in all fields of work are becoming vague in its practicality.

BIBLIOGRAPHY

1.  M.F Hussain v Raj Kumar Pandey (2008) Cri.L.J. 4107
2.  ibid
3.  Indian Express v Union of India (1985) 1 S.C.C 641
4. Odyssey Communications Pvt.Ltd.v. LokvidayanSanghatana (1988) S.C.C 410
5. Secretary, Minister of Information and Broadcasting Government of India v. Cricket Association of Bengal (1995)2 S.C.C 161
6. State of Gujarat v. Mirzapur Moti KhureshiKassabJamat (2005) 8 S.C.C 534.
7. K.S Puttaswamy v. Union of India (2017) 10 S.C.C. 1
8. Chintaman Rao v. State of Punjab A.I.R 1951 S.C 118
9. Modern Dental College and Research Centre v. State of Madhya Pradesh (2016) 7 S.C.C 353
10. R. v. Oakes (1986) 1 S.C.R 103
11. Perumal Murugan v. Government of Tamil Nadu 2016 S.C.C Online Madras 5960
12. S. Khusbhoo v. Kanniammal 2010(5) SCC 600
13. Sony Pictures v. State 2006 3 L.W 728
14. K.A Abbas v. Union of India (1970) 2 S.C.C 780
15. Maqbool Fida Hussain v Rajkumar Pandey (2008) Cri.L.J 4107
16. Samaresh Bose v. Amal Mitra (1985) 4 SCC 289
17. Nandini Tiwari v Union of India (2014) S.C.C Online Del 4662

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