Freedom expression in face of potential to hurt others

This is in response to Quirky Indian's post and Pal's comment here (click)
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Pal (and Quirky Indian),

I guess, very few people would dispute that Hussain is being hypocritical in employing double standards (and it can almost objectively be proved). And we recognize hypocrisy as a detestable thing in our day-to-day interactions. But is hypocrisy legally punishable? Unfortunately, since we are talking law here, things have to be more concrete than mere emotional appeals. Law is not based purely upon the nature of acts, but as much on their consequences and the intent. Law and ethics had to be developed precisely because people interact with each other, and these interactions evoke different responses in different people. But beyond a limit, we do stereotype people's behavior for simplicity and universal applicability of law. Just because a few people might want to commit suicide does not imply others do not have the desire to live, or they should not have unalienable right to live. So, for instance, "right to live" fundamentally is a form of stereotyping based on how people usually behave and desire or dislike. That people desire life and fear deaths are generalizations, but well accepted ones. That people can feel hurt when the deities they worship are portrayed nude and labeled thus is also a generalization, but can such generalization be employed to make such an act punishable? And again, I will try to present a case as to why it would not be unjustified if Hussain ends up punished.

I used to think (court's) judges' function was to work on the basis of some kind of algorithm, but fortunately that is not the case. They're supposed to take into consideration that small human element. I know it makes things subjective, leaving a margin for transgressions of fairness, but it is much better than robotic application of laws. Law will never be perfect as long as people harbor the intention to be dishonest and indulge in things they themselves know to be unethical. But still, the manner in which our law currently (theoretically) functions still comes close to being perfectly ethical. Think of it, issues related to cyber crime can be brought under the gamut of laws that were created long back only by slight modifications.

If we are to remove establishment of intent in one's actions out of the picture there is no way a surgeon operating upon a stab injury victim can be absolved if the patient dies because the fact that his surgery was antecedent to the patient's death can be used to argue that surgeon caused the death. In this sense, a surgeon trying to save the patient would be no different from a person trying to kill the patient by stabbing.

Remember, surgeries are traumatic events in the sense continuity of the skin is breached, blood is lost, there is damage to liver, kidneys, etc. because of anesthesia used, loss of consciousness if general anesthesia is used. The only things that keep so many potentially harmful things from being considered wrong are:

1. Surgeon's intent (in interest of the patient)

2. Consent of the patient.

3. Potential benefit incurred by the patient (meaning what could be gained has to be perceived to be greater than what the patient suffers: the 'risk-benefit ratio') despite the risk of harm.

Now, but it could be argued that the body of the patient belongs to the patient and he/she may or may not consent to things, but to who does a religious deity belong?

It is here the things get contentious. The constitution has recognized the right to practice religions, which are in turn based on nothing but one flimsy thing called faith. If faith (which is beyond the realm of reason, and hence arbitrary) is used as a yardstick to grant various favors like caste and religion based reservations, then the subjective disgust felt, which is "beyond reason" also becomes admissible. Moreover, this makes the one worshiping the said deity/religious figure in a way its owner. Have you noticed how subconsciously we apply the very same logic in saying "Muslims' Babri Mosque" and "Hindus' Ram Temple"? Otherwise, religious practitioners are not a "financial company" to own any monument, religious or not!

Consider another situation:

'Roadside Romeo' whistles at a girl passing by. What different has he done as compared to Hussain who had invited others to view what he had painted?

How does one establish that our Romeo was whistling at the girl? He was just whistling and the girl happened to pass by. What about Romeo's right to creative expression? Just because the girl "feels" it was obscene does not make it obscene! But the fact is there are established conventions that are well known and people are expected to respect them. Otherwise, why should not standing up when National Anthem is being played considered punishable? What if a person does not feel respect for the nation? What if a person does not think that respect can be shown to the nation by standing during while the anthem is played? Or most imaginatively, what if the person feels that contrary to what others believe (the argument that can be used by Hussain and artists), standing while the national anthem plays only amounts to disrespect of the nation (for "whatever" reason, because by relegating certain human actions beyond the realm of reason and justification, viz., "arts", we surrender our right to question anything about them, and in fact, then anything could be included under the broad term of "art")?

But of course, one may argue that if one applies these standards then no one would be able to air a dissenting opinion.

But again here is where the intent part comes into picture. A "mad" person may be restrained. It amounts to restricting his freedom. However, we still do it in the larger interest of others around. Is the dissenting opinion benefiting the society in any way? Can art benefit the society at large in the same way, opinions or commentaries do? I will remind here, the reason I am bringing in society so frequently is because considering the case involved, we are talking of art in "public" and not in "private" domain.

Consider another situation:

"A" throws knife at "B". B dodges. A throws knife at "C". C dies. A's defense - "it (throwing knife) is my way of expressing my creativity; B could dodge; why did C not dodge?"

Whether this scenario would be taken to be murder and the severity of punishment would depend upon many factors like:
1. Whether A knew that being hit with a knife can lead to death (the reasoning by which drunken driving is punishable)
2. Whether A had intended that B or C die (motive behind the act).
3. Whether B or C actually die.
4. Whether whatever B or C suffer from were directly caused by the throwing of the knife (say, B dies because of malaria despite dodging the knife).

Remember, it is not a case that to punish, all the four are to be proved. Just that the severity of punishment would depend on how many points are proved and with what strength of conviction.

Hussain (hypothetical argument): "it (painting nude images that I label and admit in public to be Hindu Goddesses) is my way of expressing my creativity; B came to the gallery, viewed my pictures and did not feel (dodged) hurt; why did C not dodge the hurt?"

Here, again it could be argued that because the harm is through physical contact, causation and intent are easier to prove. So, is it a case that we do not entertain hurts where physical contact are not involved? What about a mother-in-law who "abets" suicide of her daughter-in-law by merely using some words (nagging) that the daughter in law could have overlooked? What about "practicing untouchability"? Is it not an oxymoron? How could one "practice" an act of omission? What about the fundamental right of any person to not touch another person or to perceive another person as dirty (religious "reason"; religion is beyond reason, just like art)?

And last in my series of arguments, there is one very useful concept that can be used in at least "amateur ethics", which may or may not be admissible in the court of law, but is otherwise very useful - "do not do to others, what you would not have done to yourself". This is the maxim that will keep me from filing a case against Hussain (provided I am interested and have the resources). :) But then, look at the maxim (if one agrees to it) in a slightly broader sense - did Hussain do to "Others'" religion's figures what he would not have done (or do) to his own religion? Apparently, yes.

So, taking into consideration the following criteria (because these are knowingly/unknowingly applied in dealing with all criminal/civil cases), Hussain's series (not just one, which rules out the possibility of making a mistake "unknowingly") of paintings could be judged:

1. Intent.
2. Knowledge of the consequence of his act.
3. Harm:benefit ratio.
4. Causation - as in his act causing the hurt or something else.
5. Magnitude of hurt (degree of hurt to a single individual; plus, the number of individuals thus hurt).

But despite so many arguments I have put forth, there would be different judges weighing the same issues differently, and judgments that come out would vary from complete acquittal to some punishment. The pertinent law is the section 295 A (click) of IPC:

"Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs.-- Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of 6[ citizens of India], 7[ by words, either spoken or written, or by signs or by visible representations or otherwise] insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to 8[ three years], or with fine, or with both.]"

I am not saying I am in complete agreement of the law, but the fact is, it exists. And if I am to go against an established law, I will take into consideration the risk-benefit ratio - what is gained in return of potentially insulting other people's religious sentiments? Is it improving their lives in any way - say, what Taslima Nasreen did, or Baba Amte did, or the way people who expose fraud sadhus do? Did it protect people from superstitions or gave them aesthetic pleasure?

If Hussain was interested in merely expression, as I stated in the preceding comment, then he could have done so by merely hanging the painting on his bedroom wall. The fact that he had to exhibit his paintings to the public implies that his purpose (whatever it was) depended upon the response elicited by his paintings. So, is only "positive" response that he obtained to be considered the purpose of his painting, and not the feeling of "hurt"?

If people are suggesting that existing laws need to be made more flexible, then I would agree. Maybe, the best thing that could be done is that the functioning of judiciary could be smoothened to a degree that having to defend oneself in the court would not remain a disincentive. This is the best way fairness could be maintained.

Fairness lies not in blanket acknowledgment of right to "act" nor of blanket right to "get affected" by the act, but is somewhere in between. This "in between" thing will vary depending upon the sensibilities of the judge sitting over a case (imagine the frequency with which higher courts overturn the judgments of a lower court), and it cannot be helped. But the moment we make any of the rights absolute, it would only make way for its abuse (as I illustrated through the above examples).

But I also understand Quirky Indian's strongest concern - that of acknowledgment of mob rule - just because a "certain proportion" of people feel something does it become legitimate? Of course, it does not, but as I pointed out the lack of a charitable intent and possibility of existence of malicious intent in doing something avoidable that did no particular good to anyone (possibly, excepting himself) do not lend themselves in favor of Hussain.

Why M.F. Hussain is not "so" blamefree

In response to Quirky Indian's blog post (click):

It was nice to revisit this blog post. :)

In nearly half a year, I have been able to think of more number of contentious issues. :)

I'll just enlist them (not that I totally go by them, especially being an atheist, but just wanted to point out that legally/ethically issues are or can be made complicated). ;)

1. How do we draw a line between incidental getting hurt by other people and an intent to hurt? Can someone be punished for holding malicious intent of hurting others physically/emotionally, and acting with that intent? IPC section 44 defines injury thus(click) - "...any harm whatever illegally caused to any person, in body, mind, reputation or property." Does depicting a goddess in nude, which is considered socially/legally unacceptable considering public nudity is punishable today, constitute the artist's saying - "He he, see the goddess you worship is nude. She is a..."? I understand the ambiguity that words like "illegal" in the above definition are attached with, but same is the case with phrasing like "outraging the modesty of a woman" (used in definition of sexual assault), which could include just cracking a "nonveg" joke in presence of a female colleague (not involving the female)! What determines "outraging" is the subjective feeling of the female concerned. I remember, one of the bloggers feeling outraged on a construction worker showing his penis in public. Was her outrage not merely "subjective"? What about the worker's "freedom of expression"? The blogger had the liberty of turn her eyes away, forget the incident and walk away!

In something as simple as a sexual intercourse, consent is never expressed through written contracts. If movies/advertisements are to be believed and common sense applied, a lady's seductive teasing (say, in a pub) may or may not be an invitation to have sex. Whether it is or not, can only be determined with some sort of overture. Here is the problem - can the male be blamed for wrong interpretation, and the consequent overture? Or do we realistically expect males to approach females to have sex only upon receiving a written application on stamp paper from the female? So, if the female "retrospectively" (something we had discussed in your past post) feels that she had not indeed sent any sexual signal, then the male is screwed! He had sexually assaulted her in merely "testing waters"! And of course, issues remain exactly the same even with gender "role-reversal"! Because though a male cannot be legally raped, he can be sexually assaulted. What I am bringing to your notice here, is that in most of the laws, subjectivity of one feeling "hurt" is somehow honored. Honestly, I had developed some sort of respect for Hussain's simplicity seeing his interview on Movers and Shakers, long back. But you could go through this blog post, and his duplicity is revolting: http://arvind-iyer.blogspot.com/2006/02/mf-hussains-masterpieces.html But I understand, my personal disgust does not count. What I want to point out is, considering these arguments, is it possible to file cases against M.F. Hussain? Yes, I believe so. And that is what has happened! Here, I am not saying how law should be, but just pointing out, how it is.

2. How do we punish freedom of speech that directs other grown up adults to kill someone of other religions by making them afraid of the that religion's attempts at domination? Just like how religious people have a right to not get offended, they also have right to think for themselves and a right to maintain peace! In light of this fact, one frightening other grown up persons thus should not be held guilty for anything, because he was just expressing himself, and if any violence ensues, it is only those who physically indulge in it should be punished.

3. The above two points, especially, the first one, were almost merely for argument-sake. But the current point is something I am very serious about. In my opinion, there must be some sort of legal liability for deliberately broadcasting factually wrong information or opinions based on wrong/incomplete facts. This would be best illustrated by Ashley Tellis' case. Because, he was posing as an "expert" on the issue, which can guide other peoples' choices considering they cannot gather sufficient information on a complex subject on their own. If I were to tomorrow write a book, selectively describing the health benefits of smoking, can I be held responsible for damage occurring to people on the basis of their believing me and taking up smoking, despite their right to not believe me? [I am giving example of smoking only because it is well known; you could substitute smoking with any other practice that people do not have sufficient knowledge about in terms of its effects on health].

For instance I found Green Peace's propaganda against Bt-brinjal scientifically totally misguiding, and thus also injurious to the interests of the company that had done the research. If I were to be more resourceful I would have definitely thought of filing a case against them. Should this "freedom of expression" which has power to influence others' choices involving areas of limited public knowledge be with legal liabilities? I believe it should be. But then the next question would be, do legal liabilities that get attached to any kind expression be termed as restriction of that freedom?

Anyway, coming back to Hussain, I'm not sure of how true this is, but I'd read somewhere that on being asked why he had never drawn Prophet Mohammed's pictures himself, Hussain had said something to effect that Islam is not that tolerant a religion! If this is true, then it means that he was at least aware that what he was doing could hurt Hindus, but that he expected them to exercise "tolerance" (tolerance is to be exercised only against something that's potentially hurtful). What does this say about his intent to hurt? Fortunately/unfortunately, in law intent is established not through objective information but circumstantial evidence (like past behavior). Another implication of which is that, thus to establish intent in vast majority of cases is upon the discretion of the judge. Hussain's duplicity and thus the intent to hurt are clearly visible if you take into consideration how he has depicted Hindu deities as against Muslim figures. If it was all about his "subjective" expression of feelings, then it should have been irrespective of how other people (irrespective of their religion) perceive his depictions. Why harbor one "set" of feelings towards Hindu deities, but entirely another "set" of feelings against figures respected in Islam? And am afraid but glad as well, such circumstantial evidence is more often than not employed to establish intent in many cases.

If someone were to point out the engravings on Khajuraho, etc., then it must be remembered that acts done in this century have to be judged on the basis of sensibilities of this century. Example of this would be - sati. It was possibly legal in olden days, but not now! Can we use it as an excuse that our "culture" (just like Khajuraho engravings) had found it legitimate? It is wrong because, in today's world we recognize the equal right of people to life irrespective of their gender and whether their spouse is alive or dead.

What Mutthalik did was wrong because they had taken law in their own hands! People filing cases against Hussain are doing nothing wrong. Let the courts decide whether Hussain ought to be punished or not. It needs to be understood that with celebrityhood comes added responsibility to be less hurting (because, what one expresses reached a wider audience). Also, what is the meaning of "expression"? Is expression to simply draw a painting for (self-pleasure as claimed by "artists") and place it in one's bedroom, or does it necessarily have to culminate in "exhibition"? There is a thin line that separates mere expression from communication, and that line is the effort one takes in making their expression reach others. If I write a blog entry and later delete it, I am still expressing myself. But if I write the entry and send you the link, then I am communicating. What does an artist do when he draws a painting and also sends out invitations where his paintings would be displayed?

Personally, I feel, if it were all merely about artistic expression, then Hussain could have just drawn the same nude ladies, and labeled them 'Rambha' or 'Urvashi' instead of "Saraswati" and "Durga", and hardly any of this ruckus would have got created, and he would still have had the "orgasmic release" of creative expression clearly evading the law! ;) See, how cleverly Rushdie did not name anyone as ******* in his story! ;)

Taslima Nasreen, in contrast, was basing her assertions on something more universal than a religion, i.e., human rights and ethics. I do not see Hindus getting largely offended when pointed out that dowry, female feticide and sati are wrong! So, these double standards set for different religions are to be set right, first. Nasreen chose to wrote the things she did in hope that it would do good to Muslim women, and the society as a whole and also the accepted premise females have same rights as males. So, using the prevalent legal standards, she was doing more "good" than "harm" (offending Muslims). What was the intent of Hussain in drawing the paintings and also displaying them in a exhibitions What "good" did doing so do as compared to the "harm" (offending Hindus)?

I feel religions are given way too much legitimacy over other affairs by the government and the judiciary despite touting India as a secular nation, but the tone was set right with establishment of religions and castes as bases for discriminatory "affirmative action" and other sops like Hajj subsidy. So, now the judiciary and government have not right to say, "hey, religion is a private matter; don't take it seriously". They themselves brought it into public domain by making all non-Muslims contribute to Hajj subsidy, and taking over the functioning of Temple trusts, or whatever other interference they have shown in matters of religion.

But despite my making these arguments, I know I am stating something wrong and contrary to what I want the "ideal" world (as I see it) to be. But I do not think people can be prevented from making complaints in the courts merely on legal/ethical grounds. What we can explain is that we need to be pragmatic, and not react on irrelevant things as far as our survival and personal happiness are concerned. But these things are easier for me to say, because I anyway find religions overrated. I do not know about others, but to me, a person with an intent to hurt others going scotfree is somehow unacceptable. It for me, would rather constitute abuse of freedom of speech, rather than its use.

And lastly, I am not sad at losing a "great" artist. All he was doing was making money, which he would do more avidly so, now that he is in Qatar! ;) His crocodile tears do not mean much to me. A person who is so "free" in his thinking would any way not be attached to frivolous things as invisible lines (international boundaries) drawn on land.

TC.