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“Our culture breeds tolerance- both in thought and in actions. I have penned down this judgment with this fervent hope that it is a prologue to a broader thinking and greater tolerance for the creative field. A painter at 90 deserves to be in his home ‘painting his canvass!”
On 8 May 2008, this is how Justice Sanjay Kishan Kaul, then a judge at the Delhi High Court concluded his landmark judgement, ending the exile of renowned painter MF Hussain.
Eight years later, the same judge, now the Chief Justice of the Madras High Court has delivered a judgement that once again upholds freedom of expression.
A bench headed by CJ Kaul and Justice Pushpa Sathyanarayana quashed criminal proceedings against Tamil author Perumal Murugan and has said that his book “Madhorubangan” need not to be withdrawn.
The judgement concludes by stating, “Let the author be resurrected to what he is best at. Write.”
Perumal Murugan had quit writing in 2015. His farewell note reads, ‘Perumal Murugan, the author is dead’, following protests in his hometown Tiruchengode against his book
What is striking in the both these judgements is the language used, almost poetic in its form and style. The judge goes beyond legalese, making a passionate appeal that will kindle hope in artistes across the country.
The robust argument that the judge presents in both the orders is that art cannot be discerned by all, art can be provocative, but the artiste’s right should be unhindered.
While his own villagers had ostracized and protested against Perumal Murugan, MF Hussain was hounded for his nude depiction of ‘Mother India’.
The 2008 and 2016 judgments emphasise the importance of tolerance in a democracy. The judge, who eight years ago had noted that fundamentalism was the greatest problem, now observes that our tolerance levels are on the decline.
Justice Kaul points out the double standards that Indian society has towards sex and depictions of sexuality.
Hussain’s painting and Perumal Murugan’s book were objected to for its depiction of sexuality. But the judgements point out that these objections stem from Victorian morality, rather than our own liberal traditions, starting from the Vedic times.
Unlike many who threatened Perumal Murugan without ever having read his book, Justice Kaul has extensively engaged with both works of art, whether it is Hussain’s painting or “Madhorubagan”. In both cases, he presents his considered reflections of the works, justifying why they cannot be deemed offensive.
The Perumal Murugan judgement however adds a word of caution, “If the contents seek to challenge or go against the very Constitutional values, raise racial issues, denigrate castes, contain blasphemous dialogues, carry unacceptable sexual contents or start a war against the very existence of our country, the State would, no doubt, step in.”
An economics graduate from St Stephens, Justice Kaul was elevated as judge in the Delhi High Court at the age of 43. In July 2014 he took charge as the Chief Justice of the Madras High Court.
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