M. F.

Hussain v Raj Kumar Paandey

Facts

Maqbool Fida Husain is a famous painter. One of his paintings, later titled “Bharat Mata” (Mother India),
depicts India in the form of a naked woman. Husain sold it to a private collector in 2004. In 2006, the
painting was advertised in an online charity auction for earthquake victims. The advertisement of the
painting led to protests, and private complaints were filed in various parts of India. The Supreme Court
consolidated and transferred the matter to Delhi. The trial court in Delhi issued summons to the Husain for
offenses under section 292 of the Indian Penal Code (IPC), which punishes distribution of obscene
materials, section 294 of the IPC, which punishes obscene acts and songs, and section 298 of the IPC, which
punishes expression intending to hurt religious sentiments.

It was also alleged that Husain was liable under section 500 of the IPC, which punishes defamation, and
under the Prevention of Insults to National Honour Act and the Emblems and Names (Prevention of
Improper Use) Act because his painting depicted Ashoka Chakra, a symbol that forms part of the Indian
national flag and national emblem, in an objectionable manner. Husain filed the revision petition against
this trial court order.

Decision Overview

In this decision, Sanjay Kishan Kaul, J. considered that art is an important tool of expression. Article 19(2) of
the Indian Constitution allows freedom of speech and expression to be restricted on the grounds of public
decency and morality. Obscenity that is offensive to public decency and morality is not protected. As per
section 292 of the IPC, a material is obscene “(i) if it is lascivious; (ii) it appeals to the prurient interest, and
(iii) it tends to deprave and corrupt persons who are likely to read, see or hear [it]” (para. 31). Considerations
to be kept in mind while balancing artistic freedom with free speech with respect to the question of obscenity
should include: (i) contemporary mores and national standards; (ii) where art and obscenity are mixed, art
must be preponderating and obscenity must be trivial; (iii) the test should be that of an ordinary person of
common sense and prudence; and (iv) if the material is for public interest, it may be protected under the
right to free speech, but obscenity without a preponderating public interest is not protected. The High Court
further found that where question as to nudity or semi-nudity arises, the particular postures and
surrounding circumstances must also be looked into, as should the perspective of the artist, and the idea that
art “should not be seen in isolation without going into its onomatopoetic meaning.”

Based on this, the Court concluded that the painting did not violate section 292 of the IPC. Even if some
persons may have felt offended at seeing Mother India naked, that was not sufficient to constitute obscenity.
Even if some persons may have considered it more appropriate to clothe the woman or may hold more
conservative views, this does not suffice to hold Husain criminally liable. The Constitution is based on values
of liberty, equality, and fraternity, requiring tolerance of other views. Therefore, the courts should refrain
from applying their liberal or conservative views, but it is better to err on the side of liberal interpretation. A
democracy must provide freedom to dissent and to express thoughts we may hate. Intolerance has a chilling
effect on freedom of speech. While there may be other fora to express discomfort or criticism against artistic
works, the criminal justice system cannot be relied upon to make such objections.

The Court also held that Husain was not guilty under section 294 of the IPC, which deals with prevention of
obscene acts performed in public. The mere fact that this painting was uploaded on a website that could be
accessed by any person was not enough to constitute an offense under this provision. The Court also held
that Husain had no deliberate intention to hurt religious feelings and was, therefore, not guilty under section
298 of the IPC. Offense under section 500 of the IPC, which deals with defamation, was not made out since
there was no imputation capable of harming the reputation of the complainant. With respect to the Ashok
Chakra, the Court concluded that its placement in the painting was not such that would show disrespect.

With respect to jurisdiction in cases like this where the impugned material is uploaded online, the Court
suggested that a petitioner should not be made to run across the country to defend against various charges.
The Court suggested that appropriate legislation be passed to address this issue.

The Supreme Court of India later refused to entertain a petition seeking to prosecute Husain for hurting
Indian sentiments, holding that the painting was a “work of art.”