Exile or Home Arrest?

EXILE OR HOME ARREST?
- RAJEEV DHAVAN

Maqbool Fida Husain, an art icon, has become a political toy. The Congress led Union Government has flashed support for his return to India. On 29 October 2009, it declared that it would approach the Supreme Court for a quick disposal of his cases. On 30 October 2009, he was assured ‘Z’ security. This is clearly a change of heart. In May 2006, Mr. Patil, the Congress Home Minister, issued an advisory to the Police Commissioners of Delhi and Mumbai that “there are grounds to believe that certain paintings of painter M.F. Husain which hurt the religious sentiments of the majority community, and, therefore might be a provocation for communal disturbance”. In other words: “Prosecute Husain. Criminalize his art as hate speech”. Karan Thapar reminded us of an old earlier interview where Congress Spokesperson, Jayanthi Natrajan responded on the need for protecting Husain by saying, “I don’t think it’s the highest thing on our list of priorities at the moment given the act of terror against our country (and) given (the) particular situation we find ourselves (in). It’s simply not the job of the government in my view.”

After all this, the government now wants to protect Husain and expedite his trials. The hype apart, the offer is a limited offer: the process of criminalization of his work will continue. He should give up his freedom in exile, give effect to his sentiment to return to India and virtually become a prisoner under home arrest with ‘Z security’. Husain pithily remarked that the government has not been able to protect his paintings, leave alone himself.

These new proposals are minimalist. They offer little by way of ‘law’ and an alluring feeler to civil libertarians, secularists and Muslims that the Union Government is prepared to go an inch or two forward. This controversy started thirteen years ago in 1996. In September 1996, Mr. V.S. Vajpayee called Husain a ‘butcher’ for allegedly painting Hindu goddesses in the nude. No real protection emerged when the Herwitz Gallery was attacked in 1996 and 2004. Husain’s South Mumbai home was invaded in May 1998. These sites remain unprotected. Mr. Ashok Pandey offered UP Minister Qureshi Rs. 100 crores to kill Husain or when in February 2006, Jashubhai Patel from Gujarat offered 1 kg of gold for gorging Husain’s eyes and cutting his hands off. Around the same time the Congress Minority Cell of Madhya Pradesh offered 11 lakhs for any patriot who would chop off Husain’s hands for hurting Hindu sentiments. What did the Union Government and State Governments do about these criminal exhortations to maim and kill Husain? An official party political protest? None. Legal action? None.

Instead eight complaints were filed against Husain all over India. In turn, in April 2006 warrants were issued in Surat and proceedings going on in Rajkot which were temporarily injuncted by the Supreme Court allowing Husain to appear through counsel to apologise. Had this dispensation not been granted, Husain would have been assaulted, possibly killed. Husain’s humiliation continued. Eventually on December 2006, all cases were transferred to Delhi. In August, 2008 his paintings were not displayed in an art summit even though the government had taken a mildly positive stance that his paintings be displayed. When Minister Ambika Soni inaugurated this summit on 22 August 2008, the Husain issue fell to silence. On 2 March 2009 Himachal removed a chapter on Husain’s life from an NCERT book on the basis that this would not “inspire students”. In fact, if anything, Husain’s ascent from footpath to India’s greatest artist is nothing if not inspiring. The point is that even protest by political parties was minimal even non-existent.

Meanwhile the legal processes churned on. We know that on 4 December 2006 complaint cases were transferred to Delhi by the Supreme Court. Then, on 8 May 2008 came a remarkable decision by Justice Sanjay Kishan Kaul which dismissed the case against Husain after balancing protecting art and free speech against the allegations of obscenity, and communalism under the Indian Penal Code. This is one of the most significant decisions on artistic free speech for a long time. Clearly, the rest should follow suit. Now, the government wants to expedite the cases. Surely this should have been done a long time ago.

There is a difference between the “law” and the “use and abuse” of the law. Unfortunately, our law is complainant based. In both civil and criminal law the ground of “vexations and frivolous” litigation has been narrowly construed to surrender to the view that even if a worthless case has something in it, the trial will go on. The concept of malevolent litigation is limited. The ‘abusers’ of the law and legal processes have the upper hand. Perhaps, heavy costs in such cases to meet actual expenses and for violation of fundamental rights might deter such ‘abusers’ of the law. But judges, imbued by their own biases and predilections are mild except in dealing with contempt law in the judges’ defence.

Equally significantly, India’s substantive law on hate speech (whether anti-feminist, obscene, racist, anti-dalit or tribal or communal) is drifting from a strictly applied concept of “hate” and what is “objectionable” to a more lax approach of “hurting sentiments and sensitivities”. This further strays into virtually forbidding what others do not like. Many people may not like something. They may misconstrue motives. They may politically invent sensitivities to gather support and votes. These are realities of ‘hate’ speech litigation which is usually inspired by hate. The Husain litigation is an example of this– nothing more, nothing less.

Into all this, we have to bring in the concept of apology. Nelson Mandela saved South Africa by his policy of truth, reconciliation and apology. In Indian law there is little scope for apology at pre-litigation and trial stages. Some minor criminal cases are compoundable. Even “hate litigation” has no scope for “reconciliation” and “mercy”. I say this because Husain has genuinely apologised to a point of removing all paintings within his gift from public purview. That a Muslim is prevented from painting Hindu gods and goddesses in forms which they have depicted for centuries is tragic. But he has apologised.

What weight do we give to this genuine apology? One complainant in the Supreme Court agreed to withdraw his complaint because of the apology. Why cannot the others do the same? If they do not, it is because they are diehard fundamentalists committed to being unreasonable. These ‘die-hards’ are vulnerable to pressure – not just from secularists (whom they ignore) but from the BJP which should bring peace by publicly declaring that Husain’s apology be accepted. Many are not happy with Husain being driven to apology. But Husain has apologised. What we need is a campaign: “Accept Husain’s apology”.

As far as legal processes are concerned the High Court’s jurisdiction be invoked. Justice Kaul has already given a landmark judgment. The High Court be urged to decide expeditiously. This litigation has to be brought to an end.

Unrelenting fanatics can only be kept at bay by providing security for Husain. In the meanwhile, 1969 painting of Husain was sold at Christies, London for Rs. 3.1 crores. But commercial justice cannot be a substitute for a real remedy.