Chhatrapati Dutta. Bonemill Talks. Installation. Fibreglass, ceramic, backlit vinyl, readymades. 2007

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 J.L. 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 saviour of freedom, safeguarding different forms of expression against the censorial instincts of the state. In India, given the 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 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 traditional sites, specially institutionally prohibitive sites, and focusing instead on the diverse and diffuse ways in which it actually operates in order 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), an adjudicator 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 sensibilities. 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”.