“Our culture breeds tolerance- both in thought and in actions. I have penned down this judgment with this fervent 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 canvass!”
On May 8 2008, this is how Justice Sanjay Kishan Kaul, then a judge at the Delhi High Court concluded his landmark judgement, ending the exile of renowned painter MF Hussain.
Eight years later, the same judge, now the Chief Justice of the Madras High Court has delivered a judgement that once again upholds freedom of expression.
A bench headed by CJ Kaul and Justice Pushpa Sathyanarayana quashed criminal proceedings against Tamil author Perumal Murugan and has said that his book “Madhorubangan” need not to be withdrawn.
The judgement concludes by stating, “Let the author be resurrected to what he is best at. Write.”
Perumal Murugan had quit writing in 2015. His farewell note reads, ‘Perumal Murugan, the author is dead’, following protests in his hometown Tiruchengode against his book
What is striking in the both these judgements is the language used, almost poetic in its form and style. The judge goes beyond legalese, making a passionate appeal that will kindle hope in artistes across the country.
“Art is often provocative and is meant not for everyone, nor does it compel the whole society to see it. The choice is left with the viewer,’ says Tuesday’s order.
The robust argument that the judge presents in both the orders is that art cannot be discerned by all, art can be provocative, but the artiste’s right should be unhindered.
While his own villagers had ostracized and protested against Perumal Murugan, MF Hussain was hounded for his nude depiction of ‘Mother India’.
The 2008 and 2016 judgements emphasise the importance of tolerance in a democracy. The judge, who eight years ago had noted that fundamentalism was the greatest problem, now observes that our tolerance levels are on the decline.
“It is a matter of concern that as an evolving society, our tolerance level seems to be on the decline. Any contra view or social thinking is met at times with threats or violent behaviour.”- Justice Kaul and Justice Pushpa Sathyanarayana
“Our Greatest problem today is fundamentalism which is the triumph of the letter over the spirit. In a free democratic society tolerance is vital especially in large and complex societies comprising people with varied beliefs and interests.” Justice Kaul.
Justice Kaul points out the double standards that Indian society has towards sex and depictions of sexuality.
Hussain’s painting and Perumal Murugan’s book were objected to for its depiction of sexuality. But the judgements point out that these objections stem from Victorian morality, rather than our own liberal traditions, starting from the Vedic times.
“We have been called the land of Karma Sutra then why is it that in this land we shy away from its very name. Ancient art has never been devoid of eroticism where sex worship and representation of the union between man and woman has been a recurring feature.” – Justice Kaul.
“The Indian scriptures, including The Mahabharata, are said to be replete with obvious examples of sex outside marriage, also specifically for the purpose of having progenies and that too, of the intellectual class. These practices have been followed by both the higher and lower social and economical strata of the society, only as an endeavor to have a future perfect King. Can we say The Mahabharata or the various other literatures, which we have quoted hereinabove, are part of our history, yet they say something that is unusually lascivious and therefore should be banned?”- Justice Kaul and Justice Pushpa Sathyanarayana
Unlike many who threatened Perumal Murugan without ever having read his book, Justice Kaul has extensively engaged with both the artworks, whether it is Hussain’s painting or “Madhorubagan”. In both cases, he presents his considered reflections of the artworks, justifying why they cannot be deemed offensive.
“No doubt, the concept of a nation has had a long association with the idea of motherhood but just because the artist has expressed it in nude does not make the painting obscene per se thereby satisfying the test that nudity or sex alone cannot be said to be obscene. As a matter of fact, the aesthetic touch to the painting dwarfs the so called obscenity in the form of nudity.” Justice Kaul.
The Perumal Murugan judgement however adds a word of caution, “If the contents seek to challenge or go against the very Constitutional values, raise racial issues, denigrate castes, contain blasphemous dialogues, carry unacceptable sexual contents or start a war against the very existence of our country, the State would, no doubt, step in.”
An economics graduate from St Stephens, Justice Kaul was elevated as judge in the Delhi High Court at the age of 43. In July 2014 he took charge as the Chief Justice of the Madras High Court.