Looking at Landmark Cases in the Sphere of Art Laws In India

In a developing country like India, the art market holds a huge future with the pandemic unable to hammer down on the sale of artworks which is evident from the sale at the Saffronart auction where Amrita Sher-Gil’s In the Ladies’ Enclosure ( 1938)by Amrita Sher-Gil was sold for Rs 37.8 crore and 2 V.S Gaitonde’s pieces went on sale for a record Rs. 35.5 crore and 39.98 crores. The tech space over the past two decades has in turn helped in the growth of the art world with many traditional and new collectors putting their money into the safe space that often transcends the recession. This has also resulted in the growth of several new generation art auction houses like Terrain. art which is block chain powered and specially with the inclusion of the new art forms in digital forms and the growth of NFTs, the acceptance of the art form, its reach have surpassed the popularity and the apparent shelved spot that was even there during the highest peak of the Indian art business in 2007. Some famous cases in this sphere are as follows:

1. M/S Bid and Hammer v M/S Skn Investments (Chennai) Pvt. Ltd.[2012]

An 81 page judgment was delivered by Justice R.Gururajan in a dispute between Kiran Nadar, owner of the Kiran Nadar Museum of Art and Bangalore based auction house Bid and Hammer where she was asked to pay Bid and Hammer the residual 50 percent of the total sum of Rupees 1.6 crores, 12 percent interest along with the arbitrator’s fees. The dispute was over Raja Ravi Varma’s “Jatayu Vadham” which was branded fake and withdrawn by Kiran Nadar just before an auction on question of authenticity of the painting in 2014.

2. Amarnath Sehgal v Union of India( 2005) 30 PTC 253( Delhi)

Mr. Amarnath Sehgal had created a beautiful bronze mural on the request of the Government of India that was placed in the lobby of the Vigyan Bhawan in 1962. In 1979, the mural was taken from the lobby and shelved in a storeroom. When asked about it, the Government of India said that since the payment was made, the Government of India could do anything with the mural and they had all the rights. However, the Court upheld the theory of moral right under Section 57 of the Copyright Act, 1957 and said that Mr. Sehgal had the right to recreate the piece and also must be compensated for “loss of reputation, honour and mental injury” that was caused for discarding his prized creation.

3. India’s first female superstar Devika Rani was married to Svetoslav Roerich, the son of the Russian painting giant, Nicholas Roerich. Two paintings titled “Himalaya Kanchenjunga” and “Sunset Kashmir” were claimed to have been gifted by the late actress to Nazir Ahmed Khan, one of the most popular pre-independence actors whose grandson Zahid Nazir was thrown in a dispute with the Indian Agricultural Research Institute . However, these paintings were prized possession of the Indian Agricultural research Institute in 2009, which were verified by the then director of the Roerich Museum, Krylov and Tepsa of the Roerich Museum of New York that the paintings belonged to the IARI. The two paintings were presented for auction to Southeby’s by Zahid Nazir and his father Rafay Nazir Khan and the case of ownership is still pending before a British Court.

4. Raj Rewal v. Union of India &Ors[2018]

The issue of whether an architect or artist as the creator of any work has the right vested in him to object to modification or demolition of the work by the owner of the building was held in this case and the dispute was centering Section 57 of the Copyright Act, 1957 which upheld the moral rights. Mr. Mahendra Raj was the structural designer of the hall of Nations building in the Pragati Maidan grounds in New Delhi. In 2016, the IPO made a proposal to demolish the same and it was finally done. A suit was instituted by Mr. Rewal claiming rights under the provisions of Section 57. The court dismissed the suit as it believed that the author could not prevent demolition and it extended to the right of the artist to only prevent the owner from remodeling and passing in off as the artist’s work.

5. Maqbool Fida Husain and Others v Raj Kumar Pandey and Others[2008]

M.F. Husain had painted the “Bharat Mata” (Mother India) that depicted India in the form of a naked woman, sold to a private collector in 2004 and later advertised in an online auction in 2006 to raise fund for earthquake victim. There were protests all over India and summons were issued by the trial court in Delhi under Sections 292, 294, 298 for obscenity and hurting religious sentiments and under Section 500 ( defamation) of the IPC, under Prevention of Insults to National Honour Act, under Emblems and Names( Prevention and Improper Use). A revision petition was filed by M.F. Husain against the trial court’s order. The Delhi High Court referred to certain cases like Chaplinsky v New Hampshire 315 U.S. 568( obscenity is an exception to the freedom guaranteed in the American Constitution), Stanley V. Georgia 394 U.S. 557, rejecting the general test of obscenity under the Hicklin test. The Delhi High court concluded that there were no violations under the abovementioned section, upholding the freedom of expressions in works of art, just like the Supreme Court.

6. Case of Mudasir Gul

Mudasir Gul , a 31 year old Kashmiri Artist was arrested by the J & K Police for painting a pro-Palestinian mural of a sobbing woman, wearing the Palestinian flag as a headscarf and wrote” We are Palestine” to correlate solidarity with their conditions. He was booked under the Jammu and Kashmir Public Safety Act, 1978 for instigating rebellious protest as the provisions under the Act states that anything done against “ the security of the state or the maintenance of public order” necessitates putting such people into custody.