By- Shipra Saloni

INTRODUCTION

India is a gigantic and splendid nation, renowned for its rich panorama and timeless heritage. It is recognized for its glorified artistic mastery. Artistic work includes paintings, films, books, poetry, music, dance, and all other forms that soothe the heart and mind of human beings. Art is a powerful medium that heal both the visible and invisible wounds of human. Art is unfiltered energy from the soul – a force that closely mirrors divinity itself. Throughout the history the most powerful artistic expressions in various forms has not only touched the soul of humans but also triggered controversy.

 We often hear that the titled film, paintings, poetry, books, novels or any artistic work has been banned by the governing bodies claiming that this is against the social and moral values.

 There are a lot of artistic works which were banned from public release. While numerous questions were raised and answered, have we ever truly considered why the authority does so? How is the morality of any content measured- by what standard or scale? Why does the beauty of art attract controversy as well? Is it because art unveil buried truths, or because it threatens the social, political and religious sentiments?

This is where art along with literature collides with the legal system- and more often than not, it ends up in the courtroom, leaving people to choose between expression and censorship. We will examine both the perspectives through critical analysis, followed by a discussion of landmarks cases.

• ART: A Silent Mirror, A loud Protest

Art and Literature are not merely mediums of beauty that, in all the forms, heal the soul – they also raise their voice against injustice. Art and literary works are more than just innovative expressions—they are crucial for interpreting a society’s tradition, historical records, and beliefs. When combined, they offer a fuller picture of life journey. They depict the essence of different ages and serve as impactful mediums for communal and ideological critique, confronting traditions and motivating evolution.

For instances – The 19^th Century art and literary works of the romantic era demonstrate an attraction with the natural world and the inner experience, while Renaissance art and literature glorify innate talent and splendor. The poetic works and artistic visuals of the Harlem Renaissance contributed greatly in supporting African American culture and civil rights.

• Law versus Expressions: – Where the conflict begins?

There is a famous statement made by John Milton –“give me the liberty to know, to argue freely and to utter according to conscience, above all liberties.” This statement shows the essence of freedom of expression. Our supreme law – The Constitution of India- grants every citizen the right to freedom of speech and expression under Article 19(1) (a). It upholds the belief that the growth and development of any nation is impossible without safeguarding the human liberty. Wherever right exist, so does power – and power, in wrong hands, can be misused.  That is why every fundamental right comes with reasonable restrictions to prevent its abuse and maintain public order.

The conflict between the artistic expression and law arises when the freedom of speech and expression begins to threaten certain constitutional or societal values, such as:-

• Interests of the sovereignty and integrity of India
• The security of the state
• Friendly relations with foreign states
• Public orders
• Decency or morality
• Contempt of court
• Defamation
• Or incitement of an offence

To maintain the public order Article 19(2) is there to impose reasonable restriction on the freedom of speech and expression.

• When art provokes: – Who Holds the Right to Restrain?

Art and literature are significant modes of expression that frequently question cultural standards, evoke cultural thinking and ignite sentiments. As a consequence, they often clash with societal interpretations of moral principles, social decorum, and law and order. This conflict invokes a fundamental question: Who determines the boundary between standards of rightness and modesty? The concept of morality is dynamic; it is shaped by temporal shifts, societal framework, and contextual influences. What one finds offensive may be venerated by another. For instance, Canonical literary works such as Lady Chatterley’s Lover and Ulysses once accused of containing prurient or obscene content is now regarded as masterpieces within the literary tradition. Legal frameworks are designed to preserve collective welfare and ensure public order and legal stability. A legally justified curtailment of individual freedoms in democratic governance is required to restrain the abuse of fundamental rights that can yield public detriment. Legal conflicts with artistic discourse stem from the imperative to balance liberty with responsibility.

• ICONIC COURTROOM BATTLES

1.  Ranjit D Udeshi v. State of Maharashtra , 1965 AIR 881, 1965 SCR(1)65  (Lady Chatterley’s Lover Case):- A book titled “Lady Chatterley’s Lover”, written by D. H. Lawrence, was sold at a bookstore  named “Happy Book Stall”, owned by the appellant along with three other partners. The novel was an unexpurgated edition that contained explicit sexual content which had led to its ban in several countries including the United Kingdom and the United States for its perceived obscenity.

Charges:  The appellant, along with his partners, was charged with the possession and sale of the unexpurgated book which violated the interests of public morality and decency. They were charged under section 292 of Indian Penal Code (IPC) – now corresponding to the Section 294 of the Bharatiya Nyaya Sanhita (BNS), 2023 that criminalizes the sale, possession or distribution of any obscene material to public or an individual.

Appellant: – They contended that their fundamental right to freedom of speech and expression under Article 19(1) (a) is being violated by the state. They were held liable under Section 292 of the Indian Penal Code (S. 294, BNS, 2023) and fined Rs. 20 each for the offence. The aggrieved appellant then approached the Bombay High Court, questioning   the determination of obscenity by the Magistrate. However, the Bombay High Court upheld the conviction. Lastly, they approached the apex court, challenging the constitutional validity of section 292 of the IPC against Article 19 (1) (a) and seeking clarification on the meaning and context of the term “obscene” under this section.

Held:  The Supreme Court upheld the conviction of Ranjit D Udeshi and others under section 292 of the Indian Penal Code for possessing and selling an unexpurgated edition of Lady Chatterley’s Lover. In this case, the court applied the HICKLIN TEST introduced through the landmark case Regina v. Hicklin (1868), which focused on determining whether the material tends to deprave and corrupt those whose minds are open to such influences.

Significance: – However, in this case, the decision might be in favor of the public or state but it reflected the conservative perspective of the Indian Judiciary on public decency and morality, prioritizing the propriety over the artistic freedom and liberal expression.

• United States v. One Book Called “Ulysses”, 72 F.2d 705(2d Cir. 1934) (Ulysses Case):- In 1922, James Joyce published his most famous work “Ulysses”; prior to the publication he serialized the book in “The Little Review”, a literary magazine. The book has a part where a person is shown to masturbate. When it reached the public, a complaint was made against the magazine and the publishers could not argue for their work which led to the publication being stopped and the publishers were convicted and fined after the trial.

Yet, the art was not buried; it came in the limelight when a new publisher, Random House decided to challenge the ban in order to publish the work. In December 1933, Judge Woolsey ruled that ‘Ulysses’ was not obscene and pornographic – as nowhere in it was the “leer of the sensualist”. Later on, the U. S. Attorney appealed the decision to the U.S. Court of Appeals for the Second Circuit in 1934 where a three – judge bench upheld Woolsey‘s ruling by a 2:1 vote and allowed the publication of  Ulysses.

Judge Manton stated that masterpieces are not the product of “men given to obscenity or lustful thoughts- men who have no master”.

Significance: – Both the decisions emphasized that a court should consider the work as a whole when applying obscenity standards, rather than focusing on isolated parts. Additionally, the effect of the work should be evaluated based on the perception of an average person, not that of an overly sensitive individual, in order to truly understand the idea behind the work. Some critiques stated that those passages are meant to relieve emotional tension and are intended to calm or soothe, rather than stimulate or excite, sexual instincts. The trial court judge also stated that portraying the primal inner thoughts of the characters was necessary to illustrate the workings of their minds. This book was a great artistic and literary attempt by the author to observe and describe the mankind through words.  

• Bobby Art International and Others v. Om Pal Singh Hoon & Ors 1996 (4) SCC 1(Bandit Queen Case):- This landmark case revolved around the certification of the controversial film Bandit Queen, which depicts the turbulent life of Phoolan Devi- a woman who suffered brutal violence, hardships and social exclusion, ultimately transforming into an outlaw(Dacoit) determined to avenge her abusers. The film was initially granted an “A” certificate after reviewing by the Appellate Tribunal under the Cinematograph Act 1952. It was later appealed in the Delhi High Court to quash the certificate and seeking a stay on its exhibition in India. The claim was that the film wrongly portrayed the Gujjar Community through the character of Babu Gujjar, particularly in the vulgar scenes involving rape and violence. The High Court allowed the petition and quashed he certification of the film. The Supreme Court overruled the High Court’s decision, referring to the relevant Act and certain precedents and highlighted the fact that there is a Tribunal, an expert body made for the purpose of analyzing the films before getting certified. The film was reviewed by the Tribunal in a just and fair manner, without any procedural irregularity or vitiation. The court held that the film did not offend any provision of the regulating Act and did not deprave the morality or decency of public. It was found that no fundamental right of the first respondent had been violated. Therefore, the Supreme Court set aside the earlier decision and allowed the exhibition of the film “Bandit Queen” in India.

Significance:-This case underscores the clear legal distinction between artistic expression and vulgarity, affirming that not all bold or provocative content amounts to obscenity under the law.

• M. F. Husain’s Paintings: – In a country like India, people are deeply sensitive about artistic works – be it a painting, a book, music or a movie. Almost every second artistic expression culminates in legal or societal uproar over whether it offends religious, cultural, or emotional sentiments of specific communities, or whether it instigates disruption of public order. During such occurrences, a frequently spotlighted name is of the eminent cultural figure M. F. Husain.
• Painting of Bharatmata by M. F. Husain
• Painting of Sita by M. F. Husain
• Paintings of Nude Hindu Deities by M. F. Husain
• Painting of Naked Hitler and Karl Marx by M. F. Husain
• Meenaxi : – A Tale of Three Cities by M. F. Husain

All these art works gave rise to controversies on different grounds like hurting the devotional sentiments of Hindus and showing his contradictory opinion about the eminent personalities through his art.

A wide array of judicial decisions demonstrates the ongoing conflict between artistic and literary domains versus legal authority. For the time being, this discussion is tentatively concluded with these significant case laws as a reference point.

• CONCLUSION

The battle between the beautiful and the banned is a never- ending war – not fought for victory or defeat, but for shifting the society’s perception. Here, the real struggle lies not in winning, but in redefining what we choose to silence and what we dare to celebrate. From the above mentioned cases, we can understand that the law seeks to protect society; it must not become a tool to suppress the artistic creativity.

 It is evident in today’s era; people can easily be misled by offensive or sensitive content. This is where the legal system plays a pivotal role, bearing the responsibility of monitoring content in the interest of societal decency and public interest. At times, art and literature may clash with the law, as both function through distinct lenses. Nevertheless, such differences often give rise to more profound discussion, eventually leading to a more sophisticated insight—where legal interpretation develops, and the authenticity of art and creative expression sustain, preserved and appreciated.

True creative liberty cannot flourish in isolation, but neither should it be suppressed under the pressure of ethical sentiments. Legal framework should be restrained, censorship rare, and multivocal narratives secured. The boundary between artistic expression and objectionable content must be delineated with moral consideration, not hostility to criticism.

• REFERENCES
• https://www.legalserviceindia.com/legal/article-13791-obscenity-in-the-name-of-art-culture.html
• https://scroll.in/article/728997/twelve-laws-that-make-freedom-of-expression-in-literature-cinema-and-art-difficult-in-india
• https://en.wikipedia.org/wiki/List_of_films_banned_in_India
• https://timesofindia.indiatimes.com/city/chennai/government-bans-blood-art-across-tamil-nadu/articleshow/96582930.cms
• https://edtimes.in/8-pieces-of-controversial-art-in-india-you-should-know-about-pictures/
• https://www.drishtiias.com/to-the-points/Paper2/censorship-regime-in-india
• https://theprint.in/feature/around-town/salman-rushdie-to-orwell-banned-books-just-found-new-life-in-art/1951125/
• https://cbldf.org/about-us/case-files/obscenity-case-files/obscenity-case-files-united-states-v-one-book-called-ulysses/
• https://indiankanoon.org/doc/1400858/
• https://www.casemine.com/commentary/in/supreme-court-upholds-‘bandit-queen’:-a-landmark-judgment-on-film-certification-and-freedom-of-expression/view
• https://lawfyi.io/bobby-art-international-etc-vs-om-pal-singh-hoon-ors-on-1-may-1996-case-summary/
• https://blog.ipleaders.in/freedom-speech-expression/