The debate on ‘art and freedom of expression’ triggered by protests against M. F. Hussain’s paintings of Hindu gods and goddesses, is skewed on three counts.

Media biases: The first concerns the double standards practised by the left-liberal dominated intellectual and media community. John Storey’s observation about all basic assumptions of (British) cultural studies being Marxist, is equally relevant to the Indian context: “…This is not to say that all practitioners of cultural studies are Marxists, but that cultural studies is itself grounded in Marxism. All its major texts are informed, one way or another, by Marxism; whether or not their authors regard themselves as Marxist, post-Marxist or rhetorical Marxists (using rhetoric, vocabulary, models, etc., without, necessarily, a commitment to the politics). ” (Cultural Theory and Popular Culture by John Storey, Pearson Education, 1998, p. xi)

Kushwant Singh the epitome of ‘secular values’ for the media community recommended banning the Satanic Verses, in effect condemning Salman Russhidie into permanent exile. Then there was no clamour about ‘artistic freedoms’ being in peril. Now the same Kushwant Singh defends Hussain!

When the eminent columnist T. J. S. George had to run for cover for offending a ‘particular community’ to use evasive journalese - which expression does not seem to circumscribe ‘freedom of expression’ - the media was not up in arms to protest. The media tasted the wrath of the ‘particular community’ when offices of all the four main newspapers in Benagluru were attacked on different occasions. The lessons learnt almost a decade ago seem to have long lasting effect for the media did not venture to express solidarity with its Danish brethren in the recent cartoon controversy.

However it would be inappropriate to inculpate Muslims alone of intolerance of media freedom, when it offends their sensibilities. Our media was equally quiescent when recently, secular party workers of DMK burnt down the offices - along with three unfortunate employees - of Dinakaran in Tamil Nadu, all in the ‘good cause’ of an internecine warfare in the ruling dynasty there. "Contrast this with the campaign it ran when some Hindu organisations protested against the making of "Water". The movie is an anachronism as the social malady - of course, of the Hindu society - it sought to portray is nearly a century old and no longer exists."

The ideological motherlands of our left-liberal intellectuals never shied away from curtailing artistic freedoms. The land of Lenin banned Dr. Zhivago and imprisoned its author Boris Pasternak to prevent him from receiving the world’s greatest literary award, the Nobel Prize. Another Nobel winner, Alexander Solzhenitsyn, who exposed the plight of soviet intellectuals in his The First Circle, was exiled. The land of Mao ‘respects’ the ‘freedom of expression’ much more brazenly: in the Tiananmen Square Massacre, in 1989, it gunned down 2000 - 3000 people using tanks and machine guns against unarmed civilians - intellectuals, labour activists and students - protesting against galloping corruption in the ruling communist party.

Courtesans not goddesses: The second bias concerns the bas-reliefs in temple architecture. Media men and women who claim to thoroughly research the stories they put out either mischievously ignore or are ignorant about the background of the bas-reliefs. They often ask, “why object to erotic depictions in art when ‘gods and goddesses’ were depicted in erotic postures on Hindu temples?” The subjects of temple bas-reliefs are not ‘gods and goddesses’ as our intrepid media men and women - and self-styled intellectuals - glibly describe them but heavenly courtesans. They were depicted in temple bas-reliefs more for social than religious reasons. During the ninth and tenth centuries people were veering to the bhakti-cult and ignoring mundane chores such as sex and procreation resulting in a diminution of the population. The population diminution effect was exacerbated by Muslim invasions from the north at the same time. The intellectuals of the time introduced erotic bas-reliefs on temples to dispel the myth that sex was sin - an obvious if false corollary of the bhakti-cult and to rejuvenate the dwindling population.

Those who cite bas-reliefs in temple architecture in Hussain’s defence also ask another naïve question: is the cultural ethos of our motherland, steeped in the Hindu religion, so fragile as to wither away because of a few paintings which a majority of the population does not get to see anyway. This rhetorical question cleverly if speciously introduced into the debate leads us to the third bias.

Is artistic freedom absolute? The third bias is about the nature of freedom or freedom per se. Is any freedom absolute? A ruling of the European Court of Human Rights adjudicating in a matter concerning the freedom of speech based on Article 43 of the “Convention for the Protection of Human Rights and Fundamental Freedoms (Convention)”, amply clarifies the matter. (Freedom of religion and other beliefs. [1994]. Otto-Preminger-Institut v. Austria, 13470/87- 1994 - ECHR 26, September 20,1994.)

The case concerns whether the Austrian government violated article 10 of the Convention in seizing the film “Das Liebeskonzil” (Council in Heaven) as ordered by the Innsbruck regional court. The facts in the case are as follows: Otto-Preminger-Institut fur audiovisuelle Mediengestaltung (OPI), a private non-profit making organization was to screen the film “Das Liebeskonzil” (Council in Heaven) by Werner Schroeter. The film was based on Oskar Panizza’s satirical tragic-drama set in Heaven and performed by Teatro Belli in Rome. In Schroeter's film, God's representatives on Earth carrying the insignia of worldly power closely resemble the heavenly protagonists. The film, targeted “trivial imagery and absurdities of the Christian creed in a caricatural mode” and aimed at investigating “the relationship between religious beliefs and worldly mechanisms of oppression”. The theme of the film was far more derogatory to the Christian religion than the “Da Vinci Code”. At the request of the Innsbruck diocese of the Roman Catholic Church, the public prosecutor, instituted criminal proceedings against OPI for “disparaging religious doctrines”, an act prohibited by section 188 of the Austrian penal code. The Innsbruck regional court ordered the seizure of the film and the Innsbruck Court of Appeal upheld the order.

What is important to note here is that the Court of Appeal considered that artistic freedom was “necessarily limited by the rights of others to freedom of religion and by the duty of the state to safeguard society based on order and tolerance”. The court further held that indignation was justified to attract penal provisions (of Austria) as the film offended “the religious feelings of an average person with normal religious sensitivity”. Further, “the whole derision of religious feeling outweighed any interest the general public might have in information or the financial interests of persons wishing to show the film”.

The trial court’s observations about artistic freedom/s are worth noting and hence are quoted here in some detail: “Article 17a of the Basic Law guarantees the freedom of artistic creation and the publication and teaching of art. The scope of artistic freedom was broadened (by the introduction of that article) to the extent that every form of artistic expression is protected and limitations of artistic freedom are no longer possible by way of an express legal provision but may only follow from the limitations inherent in this freedom.... Artistic freedom cannot be unlimited. The limitations on artistic freedom are to be found, firstly, in other basic rights and freedoms guaranteed by the Constitution (such as the freedom of religion and conscience), secondly, in the need for an ordered form of human coexistence based on tolerance, and finally in flagrant and extreme violations of other interests protected by law, the specific circumstances having to be weighed up against each other in each case, taking due account of all relevant considerations.”

The 9-member commission of the ECHR in its 6-3 judgment held that in the case there was no violation of the Convention. The majority of judges held that “whoever exercises the rights and freedoms enshrined in the first paragraph of that Article (10) undertakes "duties and responsibilities". Amongst them - in the context of religious opinions and beliefs - may legitimately be included an obligation to avoid as far as possible expressions that are gratuitously offensive to others and thus an infringement of their rights, and which therefore do not contribute to any form of public debate capable of furthering progress in human affairs. This being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent improper attacks on objects of religious veneration, provided always that any "formality", "condition", "restriction" or "penalty" imposed be proportionate to the legitimate aim pursued.” Further, the judges held that “Article 10 cannot be interpreted as prohibiting the forfeiture in the public interest of items whose use has lawfully been adjudged illicit... Although the forfeiture made it permanently impossible to show the film anywhere in Austria, the Court considers that the means employed were not disproportionate to the legitimate aim pursued and that therefore the national authorities did not exceed their margin of appreciation in this respect.” The dissenting judges, while holding that the Convention does not guarantee religious freedoms, nonetheless agreed that: “…it must be accepted that it may be "legitimate" for the purpose of Article 10 to protect the religious feelings of certain members of society against criticism and abuse to some extent; tolerance works both ways and the democratic character of a society will be affected if violent and abusive attacks on the reputation of a religious group are allowed. Consequently, it must also be accepted that it may be "necessary in a democratic society" to set limits to the public expression of such criticism or abuse.”

Bibliographic References:
Freedom of religion and other beliefs. (1994).
Otto-Preminger-Institut v. Austria, (13470/87) [1994] ECHR 26 (20 September 1994). Accessible from: www.hrcr.org/safrica/religion/Otto.html

OTTO PREMINGER INSTITUTE V Austria. (1994).
Otto Preminger Institute v. Austria. ARTICLES: 10; 26. Accessible from: www.mediator.online.bg/eng/ottopr_e.htm

Storey, John. (1994). Introduction:
The Study of Popular Culture and Cultural Studies in Storey, John (Ed.) Cultural Theory and Popular Culture: A Reader. Harlow. Pearson Education.