The year was 1927 and Mohammad Hidayatullah, a young Indian from a literary family, had just been enrolled at Cambridge. He was eager to take in the drama scene, but had a problem. When he was a boy, his father had prohibited him from seeing a play called Nao Tanki. Hidayatullah mused that this may have been because the play was obscene, and decided to write home to seek permission to watch plays in London's famous West End. His father was taken aback at this strange request. Hidayatullah tells us in his memoirs, "He replied expressing himself completely in favour and showing some surprise that I should ask his permission."
A year later, the English author DH Lawrence quietly published a book called Lady Chatterley's Lover in Italy.
The year was 1964, and the man who felt he had to ask his father's permission to watch Shakespeare was called upon to judge whether the nation had permission to read the unexpurgated edition of Lady Chatterley's Lover. The young Mohammad was now Justice Hidayatullah of the Supreme Court. His judgment in this case, together with one that decided the question of pre-censorship of works of art, forms the foundation on which the sizable power of Indian authorities to censor rests.
"[According to Justice] Hidayatullah... freedom of speech extended only to opinions designed to change political or social conditions...The corollary being that art, such as a love song, did not have any such goal and thus had no constitutional protection. "
The Chatterley case concerned a man called Ranjit Udeshi, who ran the Happy Book Stall in Mumbai's Colaba Causeway. The police sent a "test purchaser" over to the shop, who asked for and purchased a copy of Lady Chatterley's Lover. Udeshi was promptly charged with selling obscene books. All this was happening 31 years after the book was first published.
When the case reached the Supreme Court, Udeshi argued that his freedom of speech and expression had been offended. To this, Hidayatullah answered, rather depressingly, that freedom of speech extended only to opinions designed to change political or social conditions or expressed for the "advancement of human knowledge." The corollary being that art, such as a love song, did not have any such goal and thus had no constitutional protection.
What are the limiting points to such censorship? Hidayatullah declared, "it is not necessary that the angels and saints of Michelangelo should be made to wear breeches." But he also drew this baffling distinction: "[B]ooks on medical science with intimate illustrations and photographs, though in a sense immodest, are not considered to be obscene, but the same illustrations and photographs collected in book form without the medical text would certainly be considered to be obscene."
He claimed, of all things, to be championing the cause of Indian literature, arguing that our regional languages were "strengthening themselves...after a deadening period under the impact of English," before adding, "[e]mulation by our writers of an obscene book under the aegis of this Court's determination is likely to pervert our entire literature because obscenity pays, and true Art finds little popular support." In fact, the first Indian book to be banned for obscenity was the Telugu narrative poem Radhika Santwanamu. The most famous obscenity trials in pre-independence India were of Saadat Hasan Manto for his Urdu short stories.
"Hidayatullah mentions a trip to France, where he saw the shows at the Moulin Rouge... 'in the spirit of Frank Clune's Try Anything Once.' Why deny other adults the same privilege?"
A few years later, Hidayatullah became Chief Justice of India. The Court took up a case concerning the filmmaker KA Abbas, and a documentary called A Tale of Four Cities, to which the censors had ordered cuts. Abbas decided to challenge pre-censorship itself as offensive to freedom of speech and expression. He had himself in an article expressed himself strongly in favour of censorship of films, something the Court mentioned in its judgment. He lost, and the Central Board of Film Censors (now euphemistically called the Central Board of Film Certification) was given judicial legitimacy.
Once the power to classify films into categories ("12 years and over", "adults only") is conceded, it is hard to justify further censorship. It is even harder to justify what India's Cinematograph Act does, which is to give that power to a board appointed by the Central Government. The right to freedom of speech and expression was meant to protect citizens from arbitrary governmental action. Most government bans are frivolous, ad hoc, and deserve to be defied. Hidayatullah knew this. He writes about how he fooled officials checking for possession of proscribed books by packing them at the bottom of his crate and giving the officials his "best smile".
Sadly, with the exception of the Emergency days, there has never been any groundswell of support in favour of civil and political rights in this country. To an extent, we deserve this. But then again, no one deserves this. In his memoirs, Hidayatullah mentions a trip to France, where he saw the shows at the Moulin Rouge. He claims not to have liked them, but saw each one, "in the spirit of Frank Clune's Try Anything Once." Why deny other adults the same privilege?