INTRODUCTION
The Hon'ble Apex Court in Radhakrishnan Varenickal v. Union of India, in 2018, while delivering a verdict on a petition requesting ban on a book stated, "No one can stop a dramatist or a poet or a writer to write freely expressing his thoughts and similarly no one can stop critics from giving their comments whatever its worth. One may concentrate on Classical Facets and one may think at a metaphysical level or concentrate on Romanticism as understood in the poems of Keats, Byron Shelly or one may dwell on Nature and write poems like William Wordsworth, whose poems, some say are didactic...That is fundamentally what is meant by poetic license".1 This statement clearly depicts the importance of artistic freedom provided by the virtue of right to expression mentioned under Article 19(1)(a) of the Indian Constitution.
It cannot be disputed that the freedom of speech and expression is a cornerstone of every democratic society. It entails the right to 'express' without censorship (or under reasonable restrictions) and 'express' one's ideas and thoughts through various mediums. Even John Locke mentioned 'liberty' as one of the essential fundamental rights along with right to life and right to property. Although, when it comes to India, there has always been a struggle from way back just after the independence to strike the desired balance between this freedom of expression provided under the Constitution of India and subjective terms such as 'indecent' and/or 'immoral' whose interpretation differs person to person. From movies that are not allowed to be released because of their 'explicit' contents to paintings, books and songs; all sorts of expressions find themselves facing the wrath of the 'Indian culture' and what can be accepted in it.
DEFENITION OF 'IMMORALITY' AND 'INDECENCY' IN ANCIENT INDIA
Getting into the aspect of what can be considered as indecent and immoral in the Indian culture, there seems to be a humongous evolution when it comes to India now and India back in 20th Century. Digging a little deep into history, the concept of what is culturally acceptable takes a different turn altogether. Let's take the example of 'Devdasis'. If we take into account the image of 'Devadasis' in Ancient India, then the answer is completely different with what one sees in contemporary India. 'Devadasi or Devaradiyar' means "servant of God." As per the historical backgrounds, the women were dedicated to God in temples, thereby they were not allowed to marry someone else. They used to learn all 64 types of arts including dance and music in the temple and perform the same in temples or in darbars of various kings. Consequently, as a reward or token of honour, they used to earn gold and property, that is why they were majorly economically independent.2 This definition of Devadasis is long lost in the modern day.
The devadasis were highly reputed in the past, as they were wives to the god of the temple and were skilled in music and dance. The dark period for devadasis started when a stigma related to devadasis started to circulate, leaving them with no work to sustain their livelihood. To make both ends meet, they were forced into the business of flesh trading. Now when this tradition has taken a form of prostitution rather than a profession of singing and dancing, it was reported that certain communities were forced in this practice, even when there is a ban on devadasi practice.
It is surprising how an entire community of women who were given high social status and sexual independence turned into a racket of exploitation and sex slavery over a period of a few hundred years. Even in modern India, women in complete control of their sexuality are looked down upon as being 'characterless' or 'easy'. How did this sudden change of societal attitude and perception take place?
One look at the famous Indian sculptures will prove that the Indian society was much more open-minded and progressive on the topic of sex and sexual needs than the current post-modern Indian society. Even Chanakya in his masterpiece 'Arthashastra' mention legalisation of prostitution, which shows how progressive Indian society was during ancient times. The renowned sculptures, a few of which are also in the list of UNESCO World Heritage Sites, showcase men and women engaging in a variety of sexual acts – scenes which will be termed as 'obscene' in the modern day and taken off the market lest it corrupts the minds of the youth. How is it that places of worships constructed so many years ago depicts such imagery yet now blurting out words like 'sex' or 'sexual intercourse' invites raised brows?
It is quite surprising how the country that introduced the world to Kama Sutra, is now turning into a place where even expressing your sexual desires makes you privy to unsolicited societal scrutiny. Rather, there is no such progressive thoughts from the society as a whole and whatever few instances are seen or heard of, they tend to be shut down either by the Government or by the public in the name of 'moral policing.'
It must be kept in mind that 'morality' and 'obscenity' are terms which can be very subjective depending on the place and culture one grows up in. A girl from a conservative family from the interiors of Haryana will find the Goan culture to be 'obscene' or 'immoral' but for the native Goanese people, it is a way of life. Before delving into the judicial aspect of the discussion on what can be considered as obscene and what cannot be, it is important to establish the meaning of the word 'expression' as art, films, literature, dance and many other forms of expression form a basic part of the Article 19(a)(1) of the Indian Constitution, which guarantees Freedom of Speech and Expression to each citizen of the country.
EXPRESSION VIS-À-VIS ARTICLE 19(1)(a) OF THE INDIAN CONSTITUTION
Article 19(1)(a) of the Indian Constitution states that, 'all citizens shall have the right to freedom of speech and expression'. Freedom of Speech and expression means the right to express one's own convictions and opinions freely by words of mouth, writing, printing, pictures or any other mode. In modern time, it is widely accepted that the right to freedom of speech (which includes expressions) is the essence of a free society and it must be safeguarded at all time. The first principle of a free society is an untrampelled flow of words in an open forum through any medium. Liberty to express ones' opinions and ideas without hindrance, and especially without fear of punishment plays significant role in the development of that particular society and ultimately for that state.
As John Stuart Mill aptly quoted, "Censorship is the enemy of Progress." Thereby Liberty is one of the most important fundamental right guaranteed against state suppression or regulation.3 The Constitution affirms the right to freedom of expression, which includes the right to voice one's opinion and disseminate the same, the right to seek information and ideas, the right to receive information and the right to impart information.4 The Indian State also being a signatory of the Universal Declaration of Human Rights, which under Article 19 mandates right to freedom of opinion and expression to everyone, has an obligation under Article 51 of the Indian Constitution to promote international peace and security and abide by international obligations. Thereby the state is mandated to create conditions in which all the citizens are effectively and efficiently enjoy the freedom of expression.
Footnotes
1. Radhakrishnan Varenickal v. Union of India, (2018) 9 SCC 725
2. Krithika Ranjam, How Devadasis went from having high social status to being sex slaves and child prostitutes, SOCIALSTORY (August 19, 2020, 9.27 PM), https://yourstory-com.cdn.ampproject.org/v/s/yourstory.com/2017/04/devadasis-india/amp?usqp=mq331AQFKAGwASA%3D&_js_v=0.1#aoh=15979197250759&referrer=https%3A%2F%2Fwww.google.com&_tf=From%20%251%24s&share=https%3A%2F%2Fyourstory.com%2F2017%2F04%2Fdevadasis-india
3. Tanu Priya, Freedom of Speech and Expression, LAWCTOPUS (August 19, 2020, 10 PM), https://www.lawctopus.com/academike/freedom-of-speech-and-expression/#:~:text=Article%2019(1)(a)%20of%20the%20Constitution%20of%20India,freedom%20of%20speech%20and%20expression%E2%80%9D.&text=This%20right%20is%20available%20only,and%20not%20to%20foreign%20nationals.
4. Ibid
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