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UPSC MainsGeneral Studies Paper IIConstitutionPractice question

Limits on Artistic and Creative Expression

Artistic or creative expression do not enjoy absolute immunity especially if it has the potential to incite violence or cause public disorder. Comment.

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How to approach

Begin by contextualizing artistic expression under Article 19(1)(a) subject to reasonable restrictions under Article 19(2). Examine the statutory and judicial thresholds governing artistic freedom versus public order. Conclude with a balanced way forward against censorship and vigilante intolerance.

Model answer

332 words

Introduction

While Article 19(1)(a) of the Indian Constitution safeguards artistic and creative expression, this freedom is not absolute. It remains circumscribed by reasonable restrictions under Article 19(2), including public order, decency, and morality, alongside the foundational Preamble value of fraternity.

1. Legal and Regulatory Framework

  • Statutory Regulation: The Cinematograph Act, 1952 provides for CBFC certification for theatrical releases, while the Information Technology Rules regulate digital and OTT content.
  • Penal Provisions: Sections 196 and 299 of the Bharatiya Nyaya Sanhita (BNS) penalize acts promoting enmity between different groups or deliberately outraging religious feelings.

2. Judicial Doctrines and Thresholds

  • Proximate Nexus: In S. Rangarajan v. P. Jagjivan Ram, the Supreme Court established the 'spark in a powder keg' test, holding that the threat to public order must be direct, imminent, and have a proximate nexus to the expression.
  • Impact of the Medium: In K.A. Abbas v. Union of India, the judiciary recognized motion pictures as a uniquely persuasive visual medium, justifying reasonable pre-censorship.
  • Protection from State Overreach: Decisions in Indibly Creative and Shreya Singhal v. Union of India affirmed that creative liberties cannot be suppressed simply due to subjective intolerance or the threat of a 'heckler's veto'.

3. Balancing Creative Liberty, Fraternity, and Public Order

  • Fraternity vs. Free Expression: Freedom of expression cannot become an unbridled license to denigrate marginalized communities, instigate violence, or deepen communal fault lines.
  • Vigilante Intolerance: A mature republic cannot allow mere artistic dissent or poetic critique to be automatically classified as an incitement to public disorder.

4. Way Forward

  • Co-Regulatory Mechanisms: Institutionalize robust self-regulatory and co-regulatory regimes for digital and artistic content to minimize arbitrary executive interventions.
  • Filtering Frivolous Complaints: Enforce preliminary inquiries under procedural laws (such as Section 173(3) of the BNSS) prior to registering FIRs against artists, safeguarding creative expression from harassment.

Conclusion

The constitutional architecture demands a delicate equilibrium between creative expression and social harmony. Preserving public order should target genuine incitement to violence while rigorously protecting genuine artistic freedom from majoritarian discomfort and administrative overreach.

Key facts to remember

definition
Spark in a Powder Keg Doctrine

A judicial test laid down in S. Rangarajan (1989) stipulating that speech can be restricted on public order grounds only if it acts like a spark in a powder keg, demonstrating clear and imminent danger.

case study
S. Rangarajan v. P. Jagjivan Ram (1989)

The Supreme Court held that the State cannot suppress freedom of expression merely due to hostile public reaction, ruling that democratic speech cannot be held hostage to the threat of unlawful demonstrations.

case study
K.A. Abbas v. Union of India (1971)

The Supreme Court upheld pre-censorship of films under the Cinematograph Act, 1952, observing that the audiovisual medium has a more profound and immediate psychological impact than print media.

Frequently asked questions

What is meant by the 'heckler's veto'?

A 'heckler's veto' refers to the suppression of an artist or speaker's constitutional right to free speech by government authorities to appease a hostile audience or prevent anticipated disruptions created by intolerant groups.

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