The Art And The Law

In this must read essay, Baroda based art historian Rajesh Kumar Singh analyses the historico-legal parameters against which the ancient Indian art and the contemporary Indian art could be viewed. He places the Baroda issue in this milieu and says that what Mr.Panikkar did was not only a historical blunder but also a legal blunder. 

Art attack
Artists nationwide are protesting against the attack and consequent arrest of a student of the Faculty of Fine, MSU of Baroda. The attackers reportedly included Mr. Niraj Jain, local BJP leader, and his men. The police had taken the student into custody for his safety or trial, now released on bail. The acting Dean (and my former teacher), Dr. Shivaji Pannikar, has been suspended on the evening of 11th May.
I was in the Faculty two days prior to the incident. I had not the chance to see the student’s painting that is, indeed, the fountainhead of the present scene. Like me, most people of the art fraternity have not seen the painting. It was part of the examination process, at the end of which it was to be put on annual display along with the art works of other students. Though I am an alumnus of the Faculty, it has never become clear to me whether the annual display of such exam-works are purely for internal evaluation, because I have never seen it restricted for the members of the public.

Accounts of the eyewitness to the content or subject-matter of the painting are circulating, which informs us that the images in question depicted Jesus Christ/the Holy Cross with a long penis, a Hindu goddess displaying her vagina, etc.

The content of the disputed painting invited the displeasure of some sections of society who went on to take the law in their hands by barging into the Faculty campus and attacking the students. This act is a legal offence and deserves to be condemned. The culprits should be brought to justice. There is no doubt about our standpoint on this matter.
However, what followed later in the form of the artists’ protest, especially the manner in which it is being conducted by the Faculty staff raises doubts from the legal viewpoint. The acting Dean, prior to his suspension, hurriedly mounted an exhibition showcasing India’s erotic art. The purpose was obviously to show to the public that eroticism was well enshrined in the history of Indian, especially Hindu, art. So, what the student portrayed could be seen in that line, and not in isolation. It sought to make the student’s work as historically justifiable, not worthy of any attack. An art critic, Ranjit Hoskote, has even written an article on the role of this exhibition in HT dated 14th May 2007. Teachers went to the media to voice the protest. They are also opposing the Vice Chancellor who appears to be a silent spectator to the scenario.
Now let us examine the legal merits of the student’s art works in question and the acts of the Faculty staff and artists supporting the artworks under the banner of artistic and academic freedom.

The Constitutional perspective
The Constitution of India provides ample of freedom for speech and expression as in Clause 19(1)(a): “All citizens shall have the right to freedom of speech and expression.”

The Constitution, however, has defined a limit encoded in the section devoted to the duties of the citizens of India, as in Clause 51A(e) on the Fundamental Duties:

“It shall be duty of every citizens of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, and regional or sectional diversities…”
Violation of the rights and duties defined in the Constitution is punishable under various sections of the Indian Penal Code.

The perspective of the Indian Penal Code
As per the IPC, the following provisions can be invoked against the student for making those depictions. Even the supporters of any such objectionable depictions would be rendered liable for the same offence. These offences are described in various sections and abridged here as under:
Section 153-
“Whoever malignantly, or wantonly by doing anything which is illegal, gives provocation to any person intending or knowing it to be likely that such provocation will cause the offence of rioting to be committed, shall, if the offence of rioting be committed in consequence of such provocation, be punished...”
Section 153A(i): “Whoever-
(a) by …signs or visible representations or otherwise, promotes or attempts to promote, on grounds of religion, race… caste or community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony between different religious, racial, language or regional groups or castes or communities, and which disturbs or is likely to disturb the public tranquillity… shall be punished…”
Section 292(2): “Whoever-

1. ...publicly exhibits or in any manner puts into circulation, or for purposes of… distribution, public exhibition or circulation, makes, reduces or has in his possession any obscene …drawing, painting, representation or figure or any other obscene object whatsoever, or… shall be punished…”

Exception—This section does not extend to-
“(a) any …drawing, painting, representation or figure- (i) …which is proved to be justified as being for the public good on the ground that such …drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or (ii) which is kept or used bona fide for religious purposes…”
Section 295A:
“Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens of India, by …signs or visible representations or otherwise insults or attempts to insult the religion or the religious beliefs of that class, shall be punished…”

On the legal sanctity of the depiction
As per the above provisions, the student has committed an offence by depicting (and supervisors for allowing) the disputed content in an examination conducted by a State- or Union-funded university. The offence may attract one or many provisions of the IPC, such as section 153, 153A, 292, 292A (d, e, and f), and 295A outlined above.
The exception at 292(2)(a) above may not be applicable in case of the disputed work due to its inflammatory content, especially when it provides the scope for its motive to be interpreted as deliberate. Since paintings are not accidentally made, the depiction is open to be interpreted as a deliberate attempt. The signs and visual representations of inter alia the Holy Cross with penis, a Hindu goddess displaying vagina (in a non-religious, non-ritualistic context), etc. can be treated as obscene even in a court of law, especially when there is the fact that these depiction have hurt the sentiments of people breaking the delicate fibre of social harmony. Only a court of law can decide on this matter, but prima facie it seems that the depictions run short of legal sanctity.

On the artists’ freedom
As regards the Faculty staff’s and artists’ cry for artistic freedom, the IPC’s section 292(2)(a) provides full freedom for aesthetic, literary, and creative expression, especially those that are of literary, scientific, and artistic character. But these again are subject to the provision that that sentiment of any person, class, community, or race is not hurt. A case in point is a similar exhibition last year at Mumbai’s Jehangir Art Gallery wherein two artists, Sanjeev Khandekar and Vaishali Narkar, had displayed artworks that were perceived pornographic by many audiences. Consequently, an FIR was launched and the police had to seal the exhibition. The matter is in the court now.
We may also remember the famous incidence of a cartoonist in a European country who published a cartoon figure of Prophet Mohammad. There was large scale arson and riots throughout the world protesting such a depiction. Then, our members of the art fraternity had not sat on the streets supporting the cartoonist and opposing the riots.
The question is do we want artistic freedom that comes at the cost of hurting the religious sentiments of people? Is there no other vent left for creative expression?

On Panikkar’s erotic art exhibition
In the hurriedly curated show of Hindu erotic art, the acting Dean had tried to align the student’s work with the ancient tradition while forgetting that erotic sculptures of Khajuraho and Konark were part of a specific period’s socio-religious, cultural, ritualistic, and aesthetic tradition. They were a part of the temple’s art and architectural programming sanctioned by the governing religious and spiritual belief systems of the times and influenced by Tantrism. Besides, eroticism in historical art and artefacts are covered under the Archaelogical Survey of India act 1964, and are also exempt from the IPC’s provision of offence.
The same is not the context here. Today the moral, ethical, and aesthetic codes are different than those in the ancient times. Moral and aesthetic codes change from time to time. The painting in question does not have the religious context or sanction to justify its content. Depictions in Khajuraho show man and animal in fornication. Did Panikkar as curator of that show want his students to follow the same act? Is that the teaching he is supposed to be giving to his students? If in Ajanta paintings women and men are depicted without clothes above the waist, would Panikkar want us to follow the same ancient dress code? The curator forgot in his didactic show that the aesthetic and moral values reflected in ancient art belong to those eras. The present times has a different set of aesthetic codes and moral values that has gone to shape the Constitution of India, and their limits defined in the IPC.
The distinction between ‘nude’ and ‘naked’ hardly needs explanation. The difference between the classical eroticism of ancient art and today’s near-pornographic experiments is vast. The two should not be mixed up or even equated.
Hence, the Faculty’s attempt to mount a hasty exhibition of India’s erotic art—after the incidence—was not only needless, it was out of context.

The Code of Conduct Rules
All government servants are bound by the Code of Conduct Rules, which prohibits insubordination and communication to the media without authorization. Panikkar has not only committed an act of insubordination by acting against the orders of the university’s Vice Chancellor, he freely spoke to the media without any authorization. His suspension is legitimate under the circumstances. A government servant is also prohibited by Code of Conduct Rules to speak against the organization and its orders. He is also prohibited to speak against the elected members of the Parliament or Assembly. If there is any grievance, the book of Office Procedures provides the guidelines for addressing the grievances and concerns through proper channel.
The above examination of the legal merits of the student’s depiction and the developments following it can show that while the protest against the attack is legitimate, the manner in which it is being conducted is self-defeating and illegitimate by the law of the land.