A COMPARATIVE ANALYSIS OF THE STANDARDS ADOPTED BY THE JUDICIARY IN MORALITY AS A RESTRICTION ON ARTISTIC FREEDOM IN ECHR AND IN INDIA- WHETHER PROACTIVE OR REACTIVE
Keywords:
ARTISTIC FREEDOM, IndiaAbstract
Art as a facet of free speech is an argument that is potent and at the same time slippery. Article 10 of the ECHR and Article 19(1) (a) of the Constitution of India provides for the freedom of speech and expression. This right is however not an absolute right and it can restricted on the basis of several grounds of which ‘morals’ and ‘morality and decency’ are considered to be most challenging, in the light of standards adopted by the courts in defining the concept of morality. Issues of religion, faith, obscenity, public opinions, etc. are seen to play a large role is shaping the individual right of artistic freedom. These aspects keep changing with given time frame, region, culture etc. The objective of this paper is to analyse art as a form of expression which is a human right and a fundamental right, how the state through laws have restricted this freedom and what is the role played by the courts in instances of a dispute – is it proactive or reactive? For instance, the author considers the doctrine of ‘margin of appreciation’ adopted by the ECHR as a proactive measure to ensure the change in public attitude towards contemporary arts, whereas ‘contemporary community standards doctrine adopted by the Indian Courts is more reactive, as it tends to reflect a different version of the Hicklin’s test adopted by the Courts in previous cases.
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