Justice Sanjay Kishan Kaul of the Delhi High Court has virtually rewritten the law related to obscenity.

After M F Hussain painted ‘Bharat Mata’ depicting Mother India as a woman, a depiction which Hindu Fundamentalists found obscene, cases were filed against the painter in Gujarat, Delhi and Madhya Pradesh. The Supreme Court consolidated these cases into one case in the Delhi High Court on September 4, 2006.

Rajeev Dhavan has said that what Justice Kaul has done is:

1. “Shown that the world is now embarrassed by the 1868 Hicklin definition of obscenity which defines it as something ‘calculated to deprave and corrupt’ and confined the notion of obscenity to the commercial exploitation of hardcore sex, which, if at all, can be circulated only to adults.
2. Recognised the importance of the literature, art, science and public interest exception.
3. Shown that depictions of Indian gods and goddesses were an acceptable part of Indian tradition and are to be honoured as such.
4. Used his powers in criminal revision to stop Husain from being harassed by litigation.
5. Made a plea for tolerance and greater self-restraint saying: “A painter at 90 deserves to be in his home — painting his canvas.”

Incidentally, Justice Kishan Kaul is the judge responsible for revamping defamation law in the 2004 Maneka Gandhi case.

That being said, it is not unusual to have cases filed because something / someone is supposedly obscene.

1. Richard Gere faces obscenity charges in India for kissing actress Shilpa Shetty during an event to raise AIDS awareness – although the Supreme Court has stayed proceedings in a lower court, the arrest warrant has not been quashed.

2. However, Justices AR Lakshmanan and Tarun Chatterjee of the Supreme Court dismissed a PIL seeking ban on obscenity in papers filed by Advocate Ajay Goswami in 2006.

3. But item girl Rakhi Sawant was refused permission by the Hyderabad police to perform at an event there.

4. A PIL was filed against Hrithik Roshan, Aishwarya Rai and the producer and director of Dhoom 2 by Advocate Sudhir Kumar Ojha for attacking the image of the Indian woman by kissing in the film.

5. The Bombay High Court banned TV all channels from showing adult content without certification as a result of a PIL filed by Pratiba Naitthani, a political science professor.

Read more on Justice Kaul’s Decision by Rajeev Dhavan