One of the few things to have stayed with me throughout law school is Justice Hidayatullah's quote in the landmark judgment Sajjan Singh v. State of Rajasthan, "The Constitution gives so many assurances in Part III (of the constitution) that it would be difficult to think that they were the play things of a special majority." Essentially, he says artists either try to depict...
One of the few things to have stayed with me throughout law school is Justice Hidayatullah's quote in the landmark judgment Sajjan Singh v. State of Rajasthan, "The Constitution gives so many assurances in Part III (of the constitution) that it would be difficult to think that they were the play things of a special majority." Essentially, he says artists either try to depict the prescriptive power of law, its limitations, the lacunae it leaves in its midst or the very notion of justice.
Boston Panels (1996-1999) by Ellsworth Kelly at the Moakley United States Courthouse
Notwithstanding how intertwined law and art may seem, they are gloriously distinct from one another. Here, I trace the periphery from which law and art are bifurcated into smaller tangents. Art is that subjective, creative experience which allows us an interpretation of what we see; a leading example would be the Boston Panels which hang at the Moakley United States Courthouse. Art does not limit us; it empowers freedom, volition, unfettered expression and creativity. Law, on the other end of the spectrum, clearly delineates right from wrong, permissible from impermissible and valid from invalid. One's interpretation of the law is redundant to the law. It commands the attributes of objectivity and prudence. It is guided by reason and treads a precedented path. Ergo, from where I stand, law offers solutions while art offers perspective and leaves the audience to arrive at its own solutions. Law reminds me of Immanuel Kant's categorical imperative while Art bears a tinge of Anhad Naad (primordial sound) from Hindu mythology. So, to imagine law and art would to akin to imaging a Venn diagram of two circles called law and art which intersect when the latter seeks to depict the former and the former responds by defining its limitations.
Does the right to offend the law exist?
Should artists exercise self censorship? This is a recurrent question that plagues the law and policy sector every time the demarcation of clear boundaries between artistic freedom and censorship must be laid. It has often been argued in defense of fair, just and reasonable creative liberty that artists ought to exercise the 'reasonable person' test. However, to adopt this line of reasoning would not only be counter-productive to the very constitutional doctrine of liberty but also tantamount to stunting the growth of art as a reflection of law and society. I feel this might be the right place to pose the question as to whether our freedom of speech includes the freedom to offend? That is to say, stretching constitutional protection to works of art in an effort to narrate what is just or right does, in fact, include the right to offend. Without which the art would be incapable of holding a mirror to law, in all its limitations and achievements.
Ajjito (1981) by Robert Mapplethorpe
To come to the next intersection between law and art, the question that arises is: when does a work of art cease to be a "rightful exercise of free speech" and begin to cause an impediment to established law. Art's imagination of the law may infuriate vexatious puritans to dictate how law ought to perceive art. An unfortunate but prime example of this phenomena would be the vandalism that erupted over one of M. F. Hussain's paintings, "Bharat Mata" due to which he subsequently surrendered his Indian citizenship (Rajeev Dhavan, Publish and be Damned, Censorship and Intolerance in India, Tulika Books, 2008).
At this juncture, it is important to remember that art opens up conversations about the future which, in essence, is what law and policy is all about. If today I look at a piece of art I will wonder if this represents a negative future, then what is a positive one? What needs to happen in the next 10 years for this work of art to be created? What can I do to ameliorate this problem? The answer is simple: Art serves as an impulse that leaves its mark on us.
The holy line of creative rationale
In an effort to portray how far established law often sways from justice, artist and photographer Robert Mapplethorpe, in 1989, depicted homosexuality at a time when neither the American jurisprudence nor its public at large appreciated an artist's views on the subject. His paintings and exhibitions were shut down only later to be charged with obscenity. This incident is related to the topic at hand due to the fact that the aforesaid incident predates landmark American judgments which struck down sodomy laws in Lawrence v Texas, in 2003, and Obergefell v Hodges in 2015, which legalised marriage between same-sex couples in all of America. What is important to note here is that art plays a key role in moulding public perception which consequently aided in changing the law, thereby depicting law as it ought to be. It is safe to say that art will relentlessly keep pushing the envelope despite law's (literal) blindfold (reference is drawn to Lady Justicia). In other words, a lot of the intellectual and political space in our society is bridged through art. Art is an integral, vital part of society, and there is a long tradition of artists using art to make thoughts, emotions, and ideas visible that are
not just sensations but are relevant to society.
Contemporary artists imaging the law
In 2018, the Icelandic-Danish artist Olafur Eliasson brought 30 icebergs from a Greenland fjord to London to raise awareness about the urgency of climate change so that visitors can touch an iceberg while it melts in front of their eyes. Another example is that of Jenny Kendler's Birds Watching that depicts "one hundred eyes", each of a species of birds threatened by climate change that might be extinct in 50 years' time. Kendler's piece reminds us that birds aren't just part of the backdrop of our life, but creatures that we continually sacrifice as we ravage the planet for our own benefit. Eerily enough, it also makes one wonder when we stare at nature, it stares right back at us. In 2016 Ai Weiwei, the great Chinese artist, made a temporary studio on the island of Lesbos (a port of entry into Europe) to draw attention to the plight of millions of migrants trying to enter Europe. The idea was to highlight the refugee crisis that has gripped Europe in 2015 while over 700 people drowned in the Aegean Sea making the perilous journey from Turkey to Greece.
The fact is we live in troubled times and we cannot ignore that policy decisions made today have long lifespans. The laws we make today will influence generations to come, whether it be energy generation, flood-management infrastructure, industrial strategy or culture. The question worth asking ourselves is: if art is that vital, historically proven force, capable of moulding human behaviour, why are we not investing in the one thing that will aid law and policy development?
Indian Law and the message to Magistrates
Bharat Mata (2006) by M.F. Hussain
Pablo Picasso said "art is never chaste" and the landmark judgment Mabool Fida Hussain v. Raj Kumar Pandey begins with the same quote. The Single Bench judgment authored by Justice Sanjay K. Kaul of the Delhi High Court, as he then was, holds that any departure from what is usually comfortable and pleasant need not necessarily be labelled as obscene. Justice Kaul goes on say that living in a multicultural nation, it is imperative that we adopt tolerance towards artistic liberty as a fundamental duty. Furthermore, the judgment confers an obligation upon Magistrates to protect the constitutional values of self-expression, liberty and dissent. This judgment is a goldmine of a message for the ignorant and intolerant puritans, who often miss the woods for the trees, by filing frivolous complaints against freedom of expression.
Aaliya Waziri is a lawyer at the High Court of Delhi, India presently working as International Consultant (WPS) with UN Women Office for Timor Leste. She also serves as Consulting Editor for Grin Media Pvt. Ltd.