Justice Sanjay Kishan Kaul: The able defender of Indian art

Right from protecting MF Husain’s art, Perumal Murugan’s book and quoting the exactly right words from world literature, Justice Kaul is a crusader for the freedom of expression.

Justice Sanjay Kishan kaul
Image Courtesy: Live Law

It has been a decade since the landmark judgement on MF Husain row was delivered squashing the brutality of Section 292 of Indian Penal Code(IPC), 1860 and it all differentiated between ‘vulgarity’ and ‘obscenity’ and what art actually stands for- a fluid reflection of society.

Justice Kaul’s judgement upheld the constitutional values in the strict regard of freedom of speech which our constitution guarantees to citizens of our nation. Justice Kaul agreed that art is a coming of age and each form of expression in arts, from naturalism to abstract expressionism derives its strength from the artist’s emotional pursuits to his perceptual reality.

The judgement and justice for MF Husain
The sculpture on the earliest temples of ‘Mithuna’ image or the erotic couple in Bhubneshwar, Konark and Puri in Orissa(150-1250 AD); Khajuraho in Madhya Pradesh (1000 AD); Limbojimata temple at Delmel, Mehsana(10th Century AD); Kupgallu Hill, Bellary, Madras; and Nilkanth Temple at Sunak near Baroda- these are some of many cult figures in which rituals related to Kanya and Kumari worship for progeny garnered deep connections in early century AD. Judgement delivered didn’t forget to mention the very concept of ‘Lingam’ of the God Shiva resting in the centre of Yoni, is a representation of the act of creation, the unity of Prakriti and Purusa. Judgement says, the ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss experienced by the spirit.

Justice Kaul discussed in his order how paintbrush, a powerful tool of expression, could be perceived by some to have crossed the ‘Lakshman Rekha’ or the line of fire but what actually has to be determined is that art shouldn’t be plunged into the category of forbidden defined by ‘obscene’, ‘vulgar’, ‘depraving’, ‘prurient’ and ‘immoral.’

The said objectionable painting by MF Husain was advertised under the title of ‘Bharat Mata’ with which accomplished painter had no involvement. The ruling in the favour of Husain, for sure, upheld the artistic freedom within the parameters of Article 19 of Constitution of India and also brought the significance of this aspect on the contours of precedents where Indian as well as international courts faced with similar situations discussed and enunciated the law in relation to obscenity.

Protecting the agency of the writer and reader
In the famous 2016 judgment on controversial Tamil author Perumal Murugan, who was facing charges for the vocalism he practised in his book ‘Madhorubagan’ which loosely translates into English as ‘One Part Woman,’ Justice Kaul stated, “The choice to read is always with the reader. If you don’t like a book, throw it away. There is no compulsion to read a book. Literary tastes may vary- what is right and acceptable to one may not be so to others. Yet, the right to write is unhindered.” This lucid judgement followed Bombay High Court’s insight on controversial Udta Punjab case and on a parallel line correlated the judgement on the cinematography work with books as well as paintings to allow the further publication of Prof. Murugan’s literary piece.

The above mentioned judgements discuss  a wider societal canvas counting a multi-cultural society where religious beliefs are sacred to various segments also at the same time allow the atheists to practise their rights with a minimal element of responsibility while satisfying the touchstone of our Constitution. There is no doubt that religion is a major influence in our country but the founding fathers’ guarantees to ensure a free society is the very essence of India which must be kept intact.

Prof. Murugan set out what he perceived to be the function of a writer in his affidavit:
“The function of a writer is to question the social values and subject them to critical examination. He must not mechanically accept anything. The society which frames the rules also provides for exceptions. It is natural for a writer to focus his writing on the exceptions. When the society insists on the rules, the writer will highlight the exceptions. That is how it is possible to perceive things from the side of the victims. Otherwise, the case of the victim and marginalised will go unheard.”

The statement highlights the contemporary practice of favouritism by state and society to underscore voices of artists, writers, actors and activists. An author writes, a painter paints and a sculptor expresses through his murals but judging an art on any arbitrary parameter is not restricted to obscenity, it has to be well examined and digested a whole. A piece of art is not a statute liable for instantaneous justification but something to be assessed completely before coming to a conclusion. Justice Kaul’s judgements on artistic lines reinstated the faith of every practitioner of constitutional rights of expression in Indian judiciary. 

The Fundamental Right To Privacy
The cascade of human rights activism started in 2008 with his judgement on MF Husain didn’t stop even after a decade. After being elevated to Supreme Court in 2017, it was an august day in the month of August when Justice Kaul led bench ruled a pathbreaking judgement on Privacy being a fundamental right. Bench agreed that the privacy is a fundamental factor which is intrinsic to human life, establishes liberty and allows sacrosanct process of thought and so falls under Article 21 of the Constitution. Justice Kaul believes that privacy is an inherent light. It is thus not given, but already exists. It is about respecting an individual and it is undesirable to ignore a person’s wishes without a compelling reason to do so.

The right to privacy ensures the protection of one’s individuality, personality and dignity. However, no light is unstoppable and so it is with privacy but it will only arise by constraining the case against national integrity and security. This also opened a chain of argumentations on Aadhar profiling on which Justice Kaul ruled that the union must ensure zero discrimination based on religion, ethnicity and caste by such personal data profiling and there must be strong regulations on free movement of such data on accords of Regulation(European Union) 2016/679.

‘Uber’ knows our whereabouts and the places we frequently visit. ‘Facebook’ knows who we are friends with. ‘Alibaba’ knows our shopping habits and ‘Airbnb’ knows where we are travelling to. But what about the protection of our information we share with these companies? It becomes a mandatory duty now to ensure that data breach doesn’t happen. Thus, there is an unprecedented need for regulation regarding the extent to which such data can be stored, processed and used by non-state actors, and the judgement on privacy even rules that there is also a need for protection of such information from the State and the State must work on these minimal grounds.

Poetic Justice
It is quite interesting to note a fun fact for which Justice Kaul is admired in addition to his judgments, and that is his poetic and imaginative sense which is reflected in his judgements. The famous 2008 judgement delivered by Justice Kaul on the obscenity row of MF Husain reads Pablo Picasso’s quote on art-“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.” Justice Kaul, in Prof. Murugan’s case order, didn’t forget to remember famous French author Voltaire. Order opens with the quote by Voltaire-“I may disapprove of what you say, but I will defend to the death your right to say it.” This was celebrated as an epic defence which stole the show and sent a vibrant message across India from the aisles of law rooms.

The constitutional agreement of all democracies refers to a spirit. The spirit serves justice to all and is a living entity. The beauty of the spirit lies in its practice, it has multidimensional presence which at times echoes the dignity of statehood. The spirit embodied as Magna Carta was felt in France, America and India in their struggling years and transformed each passing day for better. The founding fathers of our vibrant democracy drafted the Indian Constitution and gave a grand throne to transformed Magna Carta in Part III of our constitution. It then became an unavoidable duty for citizens to enforce the legal bindings to sustain the constitutional essence and peace keepers so emerged were our honourable judges. The interference in legal proceedings in a big democracy like ours is probable but those who protect the basic rights of their brethren against all odds are undeniably heroes without cape. And I will do huge injustice to me if I don’t count Honourable Justice Sanjay Kishan Kaul among one of those few heroes.

[The Author is a research scholar at Department of Physics, The Maharaja Sayajirao University of Baroda and serves as an Editor to Academia.edu, WikiProjects]

This opinion was also published in The Quint.



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