Justice Sanjay Kishan Kaul


Without going into the question why some artists/painters are designated greater or more important than others, or why a vase made lovingly by the potters’ deft fingers fetches less than a painting made of it by some renowned painter, it is acknowledged that Maqbool Fida Husain, now a nonagenarian, is justly India’s best-known and best-selling painter.

He has also come to be India’s most controversial contemporary artist.

Like a long line of painters through human history, Husain has often painted the nude. Painters we are told seek to penetrate beyond man-made encumbrances to celebrate how god made the world in the first place. Far, then, from being a lascivious fetish, the nude has often designated an emblem of purity, and a tribute to the skill of that greatest of artists, however you call her/him/it—Nature, DNA, Creator.

Husain walks and works and visits barefeet, a defiance, I take it, of civilizational curbs on naked flesh—a striking way of expressing discontent.

Some years ago, Husain painted India partially in the figure of a nude, legs bent backward at the knees to form the peninsular conical, hair flowing laterally to imply the Himalayas, head thrown back in a gesture of distress, and one eye shedding a tear.

Many years later a collector christened the painting "Bharat Mata" (Mother India).

All that was enough for the majoritarian fascist lobby to go to town, attacking Husains’ work wherever they found it, smashing exhibitions, and slapping some seven court cases in diverse states of the country against the painter on charges of obscenity and insult to the Hindu veneration of the motherland.

Consequence: this man who loves his motherland and everything in it, most keenly its Hindu mythological heritage, had to go into exile.


Now, just recently, the Delhi High Court, Justice Sanjay Kishan Kaul presiding (given the communally charged context surrounding this and other such issues, a truly fortuitous and heartening circumstance that), has pronounced on three of the cases against the artist:

"In view of the aforesaid, the summoning orders and warrants of arrest issued against the petitioner in the complaint cases are quashed and the revision petitions filed against them are allowed leaving the parties to bear their own costs"(section 121) Justice Kaul has opined.

And the "aforesaid" of Justice Kaul’s seventy-page judgement it is that must make for a landmark interpretation not just of the laws that pertain to the suites in question but of the implications of all such fascist attacks on the most dearly-held values of India’s republican constitution and democracy, and on the most prized attainments of the human spirit everywhere through history.


On point of law, Justice Kaul draws upon a breath-taking swathe of legislation and judicial pronouncement on the issues of obscenity and wounding of the religious/patriotic sentiment from America, Britain, Canada and at home.

Reproducing a facsimile of the impugned painting, Justice Kaul then makes applications of those legislations and pronouncement to Husain’s work, and at each point of contention refutes the allegations as wholly inappropriate to the work in question. Amazingly for someone whose calling is not that of a connoisseur or a professional art critic, Justice Kaul, arguing how one and the same art work continues to be viewed differently by different people, produces a reading ot Husain’s use of the nude in the said painting which speaks for an extraordinary perspicacity into and empathy with the inner world of the artist’s concerns:

"The artist’s creativity in this painting is evident from the manner in which the artist by way of a tear and ruffled, unkempt, open hair of the woman tried to portray the sad and the dispirited face of our nation who seems to have suffered a great deal of anguish and agony. A woman’s sorrow has been described by the way the woman is lying with her eyes closed, with one arm raised on her face and a tear dropping from the eye.

The object of painting the woman in nude is also part of the same expression and is obviously not to stimulate the viewer’s prururience but instead to shake up the very conscious of the viewer and to invoke in him empathy for India and abhorrence for the culprits." (section 100)

Truly, one might say, a people’s Daniel come to judgement.

Having, upon strenuous examination of the laws, the pronouncements and of the painting, dismissed the charge of "prurience" and "tendency to deprave", Justice Kaul takes on the subject of human sexuality, especially within the Indian context, with a healthful and candid attention to cultural history. Noting that India continues to be called the "land of the Kama Sutra," Justice Kaul recounts how in our founding traditions,

"way back then. . .people led exotic lives dedicated to sensuality in all its forms. It was healthy and artistic. They studied sex, practiced sex, shared techniques with friends, and passed on their secrets to the next generation. All in good spirit. Sexual pleasure was not behind closed doors or a taboo; it was in the air in different forms. There was painting, sculpture, poetry, dance and many more. Sex was embraced as an integral part of a full and complete life. It is most unfortunate that India’s new ‘puritanism’ is being carried out in the name of cultural purity and a host of ignorant people are vandalizing art and pushing us towards a pre-renaissance era" (section 110; emphasis added).

Indicating that the charge of "prurience" could well lie on the charger’s foot, Justice Kaul notes that "the literature of India, both religious and secular, is full of sexual allusions, sexual symbolisms and passages of such frank eroticism the likes of which are not to be found elsewhere in world literature."

And, specifically speaking to Hinduism, Justice Kaul instructs its fanatic and fundamentalist votaries that "being the world’s oldest religious tradition (Hinduism) incorporates all forms of belief and worship without necessitating the selection or elimination of any. The Hindu is inclined to revere the divine in every manifestation, whatever it may be, and is doctrinally tolerant. A Hindu may embrace a non-Hindu religion without ceasing to be Hindu, and since the Hindu is disposed to think synthetically and to regard other forms of worship, strange gods, and divergent doctrines as inadequate rather than wrong or objectionable (a brilliant enough discrimation there), he tends to believe that the highest divine powers complement each other for the well-being of the world and mankind" (104; this writer is tempted to think how the Trika view of Hinduism, popularly referred to as Kashmiri Shaivism, suffuses Justice Kaul’s readings of the world and its divinity here.)


Fully cognizant that the motivations of the assault on Husain do not lie in the charges made—prurience or insult to Hinduism—Justice Kaul takes on the politics of the charges head on:

"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." (115)

"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. . . there should be freedom for the thought we hate. Freedom
of speech has no meaning if there is no freedom after speech.
" (113, emphasis added).

It should be obvious from the passionately terse formulations cited above how steeped Justice Kaul is in the founding principles of democracy (a Voltaire, a John Stuart Mill come to mind, although his allusion to Plato in section 112 seems that little bit ironical, since a Husain may not actually have found a place in the Republic of that philosophers’s contemplation!)

Making a special mention of the requirements of the Liberal Arts, Justice Kaul admonishes that "the practice of tolerance in our multi-religious, multi-cultural nation must be regarded as a fundamental duty of every citizen and must be actively encouraged and performed if we are to make our pluralist democracy a living robust"(117).

I have on purpose cited the Kaul judgement in extenso inorder to register the uplifting and salubrious fact that Justice Kaul’s concerns in toto coincide everywhere with the agonized concerns of so many of us who have over these fraught years of mayhem argued against "fundamentalism" and its deleteriously inimical consequences for the Republic and the Democracy that "we the people" gave to ourselves. In that regard, it is hardly possible to underplay the macro-historical import of the Kaul judgement as one that refuses to limit itself merely to the technical points of jurisprudence. In every word that Justice Kaul puts on record, he comes across truly as an intellectual whose concerns embrace a totality of relations and issues, and who cares about the health of the realm with an intensity and a breadth of vision rare among professionals adept only at speaking the language of their particular discourse

But that is not all. Justice Kaul also speaks to another issue which civil society has repeatedly underscored—namely the fascist tactics of registering such cases in scattered courts with the single despicable intention of causing as much harassment to the victim as can be:

"These days unfortunately some people seem to be perpetually on a short fuse, and are willing to protest often violently, about anything under the sun on the ground that a book, or painting, or film etc., has ‘hurt the sentiments’ of their community. These dangerous tendencies must be curbed. We are one nation and must respect each other and should have tolerance." (117)

and, most consequentially:

"…criminal Justice system ought not to be invoked as a convenient recourse to ventilate any and all objections to an art work." (117)

The Judgement notes that the dirty trick of slapping suites all over the place is nothing more than a tactics not to secure justice but to cause the greatest harassment to the chosen victim of fascist ire.


Let me conclude by extrapolating from Justice Kaul’s text but one sentence that I suggest should stand for a talisman to all and sundry who bear any pretence of being votaries of democracy anywhere in the world:

"Freedom of speech has no meaning if there is no freedom after speech."

Prior to the neocon era in the western world generally one would have thought this was a principle that was largely held sacred. Not so since.

We have indeed a long way to go to meet the standard of thought and practice that Justice Kaul enunciates in that sentence. But it is equally true that unless we do meet that standard we have scant business to be trumpeting our democratic system.

And the culprits here, as we have seen lately (Taslima Nasreen has done that much for us—see my "The Unacceptable Excesses of Irreligion", Znet), the best of us—individuals, organizations, parties, governments—tend to fail that test. We must remember that, at all times, we cannot point fingers with any conviction if an odd finger can be pointed back at us.

What then will Justice Kaul’s historic Judgement achieve? Will it put an end to the suffocating and violent elimination of dissent within our body politic? Not be thought. But, it will most surely carry the weight of accreting history, and remain a precedent guaranteed to cause hurdles in the way of those who wish to carry on with the kind of pogrom that Husain has been victim of purely on account of being a muslim, let it be said. It is for civil society organization from now on to ply Justice Kaul’s monumentally helpful pronouncement in the continuing secular and lawful struggle to establish a culture of tolerance and pluralism. For a start, efforts must be redoubled to secure an end to the other four cases pending against Husain so that this lovely human being and artist can return to the home he longs for. We also enjoin upon the fraternity of the bench to attend closely to the Kaul analysis and judgement, and set a collective leadership in this regard.

One more thing: en passant, the Canadian law on the subject of ‘obscenity’ that Justice Kaul alludes to carries within it a moral dimension that many of us have dearly argued for:

"The Canadian Criminal Code defines obscene material as any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene" (section 18, emphasis added).

The very question we wish to ask: why is it that obscenity/morality tends to remain restricted to the arena of sexuality alone? Why are corruptions of other kind that have far worse and extended consequence as enunciated in the Canadian code not deemed to be universally ‘obscene’? Does this fact point to significant features of class rule? Because that provision does not exist in either the American or the Indian code, neither the invasion of iraq and the genocide thereof, nor the routine cruelties vented here upon dalits, women, and children are thought of as ‘obscene’; it is high time we say that they should be so designated, and appropriate provisions incorporated in our system of jusrisprudence.

But, in the meanwhile, Justice Sanjay Kishan Kaul, you deserve our admiration and our thanks.

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