Sense and Censorbility

Lawrence Liang mulls over the difficult relationship between Law and Art.

In 1927, Edward Steichen, a prominent photographer, purchased a sculpture from the Romanian modernist sculptor, Constantin Brancusi. He then attempted to have the work, Bird in Space, shipped to the United States. While the Customs Law exempted the imposition of customs duty on works of art, the customs officer, Kracke, was not convinced that this ‘bird’ was a work of art and instead chose to classify it as an industrial item consisting of raw materials (Metal and Stone) and placed a duty of $ 4000 on its import. One of the reasons was the fact that this bird had ‘neither head, feet nor feathers’. Brancusi appealed in a court, which held that it was indeed a work of art by reason of its symmetrical shape, artistic outlines, and beauty of finish.

Although this case is not a typical example of censorship, it does illustrate for me the precise problem of the relationship between law and art. If censorship were merely about the imposition of restrictions on different forms of expression, it would be a relatively minor problem. After all, anyone engaged in creative expression, takes for granted that her/his work will necessarily upset existing ideas of aesthetics, morality, and public opinion. As Borges has reminded us, censorship is the mother of metaphor, and the world of creative expressions would, in fact, be far more boring without censorship. The relationship between law and art exceeds the domains of permissible and impermissible speech, and it is when the line between law and aesthetic theory gets blurred that we have to become extra alert to the vagaries of a legal theory of art.

In most traditional accounts, censorship is narrated as a problem of ‘prohibition’, whereby, certain modes of representation are rendered impossible or illegal. These prohibitions can operate in different registers – the political, the moral, or the aesthetic. This account is then followed by a claim that this act of prohibition is a violation of our fundamental right to freedom of speech and expression.

The framing of censorship as a problem of prohibition and interference has a number of consequences:

It relies primarily on an account of actions of the state or institutions.

It is often a one-dimensional account of power – those who possess it exercise it against those who don’t possess it.

Finally, it invokes a response to prohibition that is grounded in a normative argument for greater autonomy and freedom of speech and expression.

The constitutional right of freedom of speech and expression emerges as the privileged site on which a debate on permissible and impermissible aesthetics is possible. And often, it is the court that emerges as the savior of freedom, safeguarding different forms of expression against the censorial instincts of the state. In India, given the relatively decent history of the Supreme Court on questions of free speech, there is a tendency to hagiographise courts, which grants a judicial authorship to the idea of free speech and hence seems to set the courts outside the parameters of censorship. I would like to reframe some of these questions by moving away from the usual ‘prohibitive’ account of censorship, by also examining some of the contradictions that emerge from an over reliance on a liberal constitutional approach to the question of free speech.

Drawing on Annette Kuhn’s work, we could argue that censorship can be seen not merely as a prohibitive act but also a ‘productive’ one. By productive, I don’t mean positive or beneficial, but in terms of viewing and understanding power as being formative or constitutive.  In the Brancusi case, for instance, the court does not merely validate Bird in Space to be a work of art, but does it on the basis that a work of art is something that has “symmetrical shape, artistic outlines, and beauty of finish”. In other words, when the law interprets art, it does not only just describe an external reality, but through its description, also constitutes it. A judicial interpretation unlike an artistic interpretation is backed by an absolute sovereignty, which through its definitions, also lays out the outer limits of what art can be.

Kuhn has argued that to question the prohibition model, and to move towards a productive model, does not imply doing away with power. It demands instead a reconfiguring of our understanding of the idea of power itself – reconfiguring it away from the traditional sites, especially the institutional prohibitive sites, and focus on the diverse and diffuse ways in which it actually operates and to understand “the complex negotiations that go around censorship, and the various force-fields that are inaugurated through the idea of censorship itself”.

One of the advantages of being a judge is that you constantly get to play out different legally sanctioned fantasies. Like in the famous short story by James Thurber, The Secret Life of Walter Mitty (1941), a judge may have a secret self. Along with the all-powerful role of interpreting the law, judges also get the opportunities to play art critics and film theorists and sharpen their aesthetic censorsibilites. In its landmark judgment on obscenity in India in 1965 (a judgment which still makes it illegal to read Lady Chatterley’s Lover in India to date), the Supreme Court rather modestly stated that, “The delicate task of deciding what is artistic and what is obscene has to be performed by courts, and in the last resort, by the Supreme Court, and so, oral evidence of men of literature or others on the question of obscenity is not relevant”.

This capacity of the courts to read and watch on behalf of a billion people puts them in a very strange situation. It is a responsibility of immense proportions, but not always commensurate to any particular expertise. This capacity of judges to play the role of the ultimate literary, film, or art, continues to intrigue me. The question that I am interested in is, how do we measure what the judges see and read. In a trivial sense, it could be said that the judges are testing neither the aesthetic nor the literary worth of a book or movie, and that they are only interested in the issue of determining the scope of the fundamental right of freedom of speech and expression.

However, nowhere except in the mist-enveloped regions of liberal legal theory, can one have ‘a decision’ on the abstract idea of freedom of speech and expression, which is not at the same time dependent on meta-discourses of taste, aesthetics, and propriety. If one were to look closely at the reading and viewing practices of courts, then one begins to sees the outlines of a legal theory of aesthetics slowly emerging.

The judiciary is always aware of the fact that they are reading for the entire nation, but I am also curious about the epistemological and phenomenological consequences of such a self-awareness. What exactly does it mean for the decision that the judge arrives at, knowing that he has been symbolically nominated as the first editor of the country? Sometimes, a film does not even have to be seen for the decision to be made. In the SC case on the film, Bandit Queen, for instance, courts begin with a statement, that they have not seen the film, and neither do they feel the need to, since they have heard the story from the account of the trial court judge. Now, this rather remarkable ability (coupled with the power to exercise absolute authority), itself should caution us against romanticizing the status of the courts as generous readers.

The immense responsibility also dazzles me, at times, for the impossible task that it sets for itself, and this impossibility can be illustrated by, what I term the ‘Hidayatullah Paradox’.

The Hidayatullah Paradox, so named after the learned judge who delivered the decision in the famous Ranjit Udeshi case which dealt with the question of whether or not Lady Chatterley’s Lover was an obscene book (he also delivered the K. A. Abbas judgment a few years later). The paradox can be posed by the following question: Did the venerable Justice Hidayatullah get turned on, when he read Lady Chatterley’s Lover? Trivial as it may sound, the question has serious import. The decision (based on an 1868 test – The Hicklin Test), is based on determining whether a particular work is “likely to deprave and corrupt those whose minds are open to influences”. That being the case, if Hidayatullah did not get turned on when he read the book, then, clearly, the book does not contain any material which could be termed as offensive, and if he did get turned on, when he read the book, then, he had moved away from the subjective position of being a reasonable man whose mind was free from corruption, and was hence no longer in a position to be able to judge the book.

Perhaps, it is time to call the bluff of the emperor’s new clothes. After all, the act of recognizing the nudity of the emperor consists not so much in identifying the emperor to be naked, since everyone knew that anyway. What it disrupts is the symbolic fiction that holds together a particular collective fantasy, or the fact, that everyone maintained a complicit silence about the emperor’s nakedness. One way perhaps, of calling the bluff is by humanizing the legal reading of a text. We are then able to ask aesthetic questions of the reading. Is it a good reading at all? The question no longer is whether it is good law, but equally whether it is good aesthetic, literary, or film theory?

Taking this aspect of the ‘productive’ powers of censorship further, we can also start to look at some of the productive tensions produced by a legal theory of art and aesthetics. In the days of silent cinema, you had a person who would interpret the film for you by pointing out what you should be looking at, filling in gaps, adding dialogue. The Supreme Court’s interpretation of art is similar. It teaches you how you should see the film and creates a legal theory of film and a legal theory of spectatorship – it tells you what the impact of a particular film will be on the audience/classes of audience. In other words, it creates a world of reception theory, which plays an important pedagogic role, which is not just about prohibiting a particular view, but also about cultivating a particular view.

In the post-colonial context, the pedagogical mission of censorship is closely tied to the idea of creating an ‘ideal citizen-viewer’. The task of censorship is to teach the viewer to become a citizen through particular spectatorial practices, and the imagined gaze of the citizen-viewer determines the specific content of censorship laws. A liberal constitutional approach to the question of speech often ignores the fact that a juridical model of speech also presumes a certain speaking subject, akin to the citizen viewer. At the same time it also defines the social domain of the speaking subject. Article 19(2) through the imposition of reasonable restrictions effectively lays out the the domain of the unspeakable.


While censorship never succeeds in instituting a complete and total subjectification of speech through a process of law, it does effectively circumscribe the social domain of the speakable. The very idea of ‘reasonable restrictions’ in Article 19(2) of the Constitution testifies to the complications arising out of making a claim as a legally entitled speaking subject. Any transgressive speech act, whether in art, literature, or film, will always face the risk of the artist transgressing the kind of speaking subject that you are and taking you outside the domain of who you are as an enunciator.  On the other hand, by limiting yourself to a juridical claim, you run the risk of subsuming yourself to what has already been defined as the speakable.
 
We can flesh this argument out using the case of documentary film-makers in India. Documentary film-makers in India have had two options whenever their films have been cut or censored by the censors. They can either go down the juridical route and fight the case in court, thereby adding to the corpus of jurisprudence that supports free speech in India. Or they can choose to ignore the Board completely and refuse to submit the film for certification altogether. While the former involves making a claim to your right to free speech as a citizen, the latter involves the legal threat of criminal sanctions being imposed on you.

In the case of film, the judiciary’s role is to intervene and correct the excesses of the Censor Board. But the peculiarity is that the court’s decision is determined on the basis of whether or not a particular film violates an existing principle ‘a, b, c, d’, of the list of prohibitions.  For instance, if the principle is about not inciting communitarian hatred, the court will argue that the scene in fact does not do so. What is left intact, however, is the ‘a, b, c, d’, of the list. Thus even as the court affirms the rights of an individual film maker, they do so through a reaffirmation of the basic categories of censorship.


There is thus a curious double bind that exists here. If you choose to rely on the juridical model and try to embody the norms that govern speakability in your speech, then you are absolutely affirming your status as a juridical subject of speech. Thus, if you approach the court as someone entitled to the freedom of speech, then you have to subsume your status as a speaking subject completely within the terms of the juridical. If you refuse to do that, then you risk not being granted the status of being a speaking subject. In other words, if you attempt to move outside the domain of the speakable, which has been defined by the juridical model, then you risk your status as a subject of speech, and as a speaking subject.

How do we imagine our resistance to censorship and how do we look at speech acts that push the ‘margins’ of the speakable? The speaker who speaks at the border-line of the speakable runs the risk of being cast out of the domain of the speaking subject, and yet it is only through such a risk that we can attempt to redraw the lines between what is speakable and what is unspeakable.


The problem of creative and political speech lies precisely at this intersection. When Arundhati Roy published her affidavit in the contempt case filed against her, she published it in a mainstream magazine. An affidavit is a public document but like other public secrets in India, it is never really so. Her act of defiance lay in the fact that she had questioned the court’s authority to judge the case, and her public identification of the emperor’s nudity, broke the symbolic fiction of the silence of the community.

The censorial instincts of the court have to deal with not only the consequences of a public secret having been rendered available to all, but also with the defiance of the speaking subject who has actually uttered the unspeakable.

The shift from the prohibitive to the productive model enables us to move beyond the limits that the juridical imagination sets upon us, and allows us to move into a domain of practices and contestations; i.e., into the domain of free speech and fearless listening, which is far richer than the juridical imagination of free speech. It enables us to provide thicker accounts of the role of language and speech and their relation to the idea of injury and harm, especially in the domain of symbolic expression. And it enables us to reconceptualise our task of speaking against the law – not as though laws and courts are external to speech or as though speech is a privileged site of freedom – but so that we  understand the productive tensions between the two and their contestations.

An oft-ignored virtue in the debate on free speech and censorship is the virtue of listening. The time has come to admit that the freedom of speech and expression is highly overrated without an equal commitment to tolerant listening. This is particularly true when one lives in an eggshell democracy where every step we take and every word we utter has to be carefully measured against the potential ‘hurt’ that can be caused. The true test of a democracy lies not in the volume of speech that it is willing to grant its citizens, but in the volume of uncomfortable speech that it is willing to listen to. As Azra Tabassum, a young media practitioner in Delhi, says, “Fearless speech demands fearless listening”.