This is a piece I wrote for the latest Himal Special issue on censorship.Given that it is for a magazine I had to restrict the historical account of law and visuality, but hope to develop that in a longer piece for LAOT

“An Actor Rehearsing the Interior Monologue of Icarus”, by Surendran Nair, depicts a naked Icarus atop the Ashoka Pillar, and four lions mounted on a circular abacus with a wheel at its centre. In September 2000, the BJP-led government’s Culture Ministry demanded the withdrawal of the painting from an exhibition at the National Gallery of Modern Art in New Delhi, claiming the national emblem had been portrayed in a “less than reverential manner” and could prompt objections from nationalist elements.

Sometime in 1996, the High Court of Andhra Pradesh received an anonymous letter informing the court that pornographic films were being shown in a cinema hall called Ramakrishna 70MM. The court proceeded to send two ‘lady advocates’ to ascertain the facts. In their subsequent affidavit, the advocates informed the court that they had gone to watch a film in the theatre and, after repeated obstacles – the ticket seller refusing to sell them tickets, the doorman asking them to go home, etc – they finally managed to find a seat inside the theatre. There, they were promptly informed by the manager that the film that was to be screened could not be seen by ladies, and they were ordered to leave. Following the report by the advocates, the court proceeded to have all the prints seized, and arranged for a screening for various officers of the court. The officers found the films to be a hodgepodge of short films, films-division features, advertisement films, political-party propaganda films, Hindi and Telugu feature-film bits and, of course, lots of porn clips thrown in for good measure. The court then ordered the closure of the theatre.

This would seem like just another day at the office for someone interested in the relationship between law, cinema and sleaze. But let us pause and consider one moment in this narrative a bit longer, as it contains a key to understanding the secret relationship between law and cinema. Let us look more closely at the moment when the officers of the law are huddled together in a small dark room, with notepads and pens, watching a montage of images – what must that have been like? Was there a conspiratorial silence when the nude descended the stairs, or a nervous giggle when the camera lingered for a second too long on the French kiss?

Alas, we are not likely to know what happened in that room. So, where facts fail, fiction has to fill in the gap. In the mental reconstruction of this writer, the moment is necessarily a sensuous one. And if we are unable to capture the affective dimension of what happens when censors watch an erotic film, we will fail to understand the secret that acts of censorship uncover. The sociologist Ashish Nandy once described Hindi films as revealing to us the secret politics of our desires. If that is the case, the banned films reveal to us the secret politics of the law’s desires. Is it not the case that, in deciding to withhold from general consumption certain images, the law claims to have knowledge of the real ways in which images work? The graphic is treated as a secret from which the general public must be protected. The traditional liberal response to the problem of censorship has been to see it as an interruption of the circulation of the image, and the argument is the need for a separation of the domain of law from aesthetics.

Yet there is a slightly different way in which to read judicial decisions on film, whereby the presence of film in courtrooms also serves as an act of interruption to the normal world of legal reasoning. This opens up a space in which we can examine the aesthetics of the law, where we see the law not just in its capacity as sovereign power legislating on issues of desire and the senses. Rather, the ‘desire’ of the law is made available to us, beyond the official rhetoric of the rationality of the law.

How we think about the relationship between law and the senses – particularly between law and visuality– is rendered all the more paradoxical since the law has always been marked by its iconographic existence as Justitia blindfolded.

Freudian law
Returning to our Andhra Pradesh decision, Anonymous Unsigned Letter vs The Commissioner of Police, a case that sounds as though it was inspired by a noir film. In their judgement, the judges went on to create a new genre of pornography, stating in a panel report:

Even the Censored Master copies of the films ‘SECRET GAMES III’ and ‘DARK DANCER’ contain provocative and even vulgar dances and scenes. No useful purpose is served by censoring a few feet of films here and there, when the intent and import of the films is to show hard or near-hard pornography. The only course proper is not to permit entry into the country for such films which prima facie may be classified hard or near-hard.

Perhaps it is in these Freudian-judicial slips that we can begin to see the contours of the fantasy that underwrites censorship. Censorship is, after all, not a disembodied act carried out by an abstract entity called the law. It is given effect by judges, lawyers and officials huddled in a room performing a hard or near-hard task. The schizophrenia of the judge as critic is further elaborated upon in the decision when it lays down a judge’s precise task in interpreting a film:

In judging the question of obscenity, the Judge, in the first place, should try to place himself in the position of the author of the film. From the viewpoint of the author of the film, the Judge should try to understand what is it that the author seeks to convey and what the author conveys has any literary and artistic value. The Judge should thereafter place himself in the position of a viewer and should try to appreciate what kind of possible influence or impact the film is likely to cause in the minds of the viewers. Thereafter, the Judge should apply his judicial mind dispassionately to decide whether the film in question can be said to be obscene.

This magical ability to switch between subject positions provides us with an opportunity to look at the space that mediates the relationship of law to cinema. The law has always had a deep-rooted suspicion of the image and of visual culture. This is exemplified in the kinds of ‘crises’ to which the law imagines that cinema could lead; the power of the image – the vividness of cinema, its sensationalism, its direct appeal to the senses, thereby clouding reason; and also what justifies the special place that it accords to films as compared to the written or spoken word. It is important to note that this is not just a response to cinema, and the fear is linked to a much older history of the relationship between law and the image. The 19th century for instance saw a number of legislations outlawing jugglers, magicians and other artisans who used illusion to challenge the claim of certainty of science which in turn relied on the certainty of the visual senses.

Early legal cultures were marked by an investment in visuality, which began to disappear with the emergence of law as a modern science and the shift to textuality as the basis of the law by the 17th century. This does not mean, however, that the law forgets the utility and effectiveness of carefully policed images. While, on the one hand, the legal institution disavows any connection with the aesthetic or with the imaginary, at the same time it relies on a regime of images to enforce its authority and to carry on its mode of reasoning and judgement. The memory of law – as custom and tradition, as precedent and antiquity – is in fact held and ‘sealed’ in images, imprinted through visual depiction or textual figures that bind, work and persist through the power of the image, through a vision, for example, of ‘reasonableness’, ‘law and order’ etc.

The law loves and fears images; it both prohibits them and organises its own operation in a highly spectacular and visual manner.At the physical level, the power of spiritual, edifying icons is celebrated and put into effect in every courtroom, certainly in India. Think of the wigs, the robes, the gavel, the architecture of courthouses and all the other theatrical paraphernalia of legal performance, besides, of course, the images of justice that adorn most public buildings. At a metaphysical level, the law has always had a visual policy, and understood the importance of the governance of images for the maintenance of the social bond. Law’s force depends partly on the inscription on “the soul of a regime of images”. For the law to reproduce itself at the most fundamental of levels, it has to attach itself to the unconscious, it has to enter the space of desire and operate within realms of various fantasies including that of order and disorder. How, then, do we understand the expulsion of the image from the law to understand its sustained fear of images?

Blinding justice
The Protestant Reformation and the ascendancy of print, beginning during the 15th century, turned the legal ritual from total into restricted theatre, from trial by ordeal into trial by argument and persuasion. Law took on a predominantly textual form; and through its insistence on oral and written procedure, it continues to indicate its hostility towards anything that might detract from immediate communication or lead to semantic uncertainty. The best example of this is the history of the blindfolding of justice. Today we take for granted the image of a blindfolded Justitia, with sword and scales. History, however, reminds us that this was not always the case.

The first image of the blinding of justice was created at the end of the 15th century, in Sebastian Brant’s poem “Ship of Fools”, to demonstrate that justice had been robbed of her ability to get things straight. She was unable to see where her sword was being drawn or what the balance of the scales was. But by the middle of the 16th century, the image had lost its satirical moorings, and instead had been transformed to be an indicator of impartiality and equality before the law. It was to become a virtue to resist what Augustine called the “lust of the eyes”: a blindfold was necessary to avoid the seduction of the image, and served to create the dispassionate distance deemed necessary to dispense justice.

Perhaps the law fears images because they are the bearers of emotion, and lay bare an affectivity of law that jurisprudence historically has sought to repress, or at least to restrain in favour of an abstract and disembodied logic of law. Thus, rather than demanding the de-linking of law and aesthetic, it might be worth considering the fact that the law has always had an aesthetic dimension – one that has remained notably under-explored. It is possible, then, to see the blindfold from another perspective, by examining not just what the law is prevented from seeing through the blindfold but also what we are prevented from seeing because of the blindfold. Specifically, what if the blindfold serves to keep us from seeing something in Justitia’s eyes? The blindfold reminds us of what is not there to be seen but may still be there – namely, two seeing eyes. How would the symbolic order of the law, supposedly empty of any taint of enjoyment, deal with the accusation of its own jouissance, its own desire?

What is called into question when the judges watch and evaluate films is an active process of seeing, a gaze that is rendered visible through the interpretation that they offer. An ordinary person cannot judge the merits of legal decisions when couched in technicalities, because these presume knowledge of the law. But when it comes to their judgement on films, there is a way in which the process of seeing is rendered visible. Cinema poses a challenge to the law based on the close linkage between visuality and affect: in drawing the law back into an interpretative relationship with images, it allows us to examine textual practices, imaginary domains and rhetorical devices. It brings back images from their expulsions from the world of law and into the heart of legal interpretation. This enables the reconstruction of an affectivity of judgement that lawyers have seldom paused to admit or analyse.

It is time for us to return to the darkened room where the officers of the law are examining the potential adverse impact of certain images. But this time around, we return to the site, not as an arena of legal quibbling over censorship and speech alone. We return to the space as a far more sensuous zone in which the law does not emerge as distilled reason, but as disguised passion. To examine the affective dimension of the law is to uncover the judicial unconscious, and to enjoy the erotic basis of legal order. If legal rationality emerges through an active repression of experience in favour of norm, the juridical unconscious consists of the return of the repressed aspects of the law in other forms. The image which is expelled from the reason of the law will always return to haunt the law.