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