For decades, artists in the country have been dragged to court for alleged offences such as obscenity, hurting people’s sentiments, etc, even while battling systemic abuse, as well as the issue of fakes. But now, the creative community is gearing up through dedicated forums to navigate the complex web of laws related to the field of arts to fight abuse, harassment and fakes
When Justice Sanjay Kishan Kaul of the Delhi High Court threw out the obscenity case against MF Husain in 2008 after a long drawn legal battle, he quoted Pablo Picasso to prove his point: “Art is never chaste. Where it is chaste, it is not art.” Thirteen years after the high-profile case against the celebrated artist for “insulting Mother India” in his nude painting, artists continue to be dragged to court for alleged offences such as obscenity, hurting public sentiments, disrespecting gods and causing enmity between communities.
For decades, it has been an uphill task for artists to fight court cases single-handedly in different cities and jurisdictions, often driving them out of their studios and even jobs. In Husain’s case, there were a mindboggling 3,000 cases against him in various courts, forcing him to go into self-exile in Dubai and later in London, where he died without fulfilling his dream to return to India. If Husain had to leave India, Tamil author Perumal Murugan was forced to move from Namakkal district of Tamil Nadu to Chennai for fighting a case in the Madras High Court against his 2010 novel, One Part Woman. Murugan, a famous Dalit writer, also briefly quit writing exasperated by the protests against his literary work.
Now finally, help may be at hand for those artists, filmmakers and writers who are driven to the wall while facing suits against them. A beginning was made earlier this month with the launch of an online resource centre to aid the creative community in equipping themselves with knowledge of the country’s current legal framework and past cases that could come handy in legal fights. Unmute (www.unmute.help), the virtual resource centre, functions as a guide to laws, rights and networks, and offers an opportunity for speaking up about individual cases and seeking support.
“Lots of people across generations who think that the time has come to bring forth arts and the law into mainstream discussion topics have come together to create Unmute,” says arts activist and dance scholar Arshiya Sethi. “The discourse around the arts resulted in new issues coming to the forefront like limits on the arts, abuse of power and ethics of art spaces, and they demanded us to start talking about sexual harassment, copyright, plagiarism and the rights of artists, which frankly, the pandemic brought under threat in a more focused manner,” adds Delhi-based Sethi, a founding member of Unmute.
A collaborative effort of artists, art managers, activists and lawyers, the online resource centre will be initially tuned for performing artists with an array of information on laws and rights, examples of past cases and judgments, discussions and details of partner networks. “It is primarily for performing artists, but there is material for others too,” says Manipuri dancer Samabha Bandopadhyay, also a founding member of Unmute. “There are laws, but only when we apply them properly, artists will be able to benefit from them,” says Bandhopadhyay, a trained lawyer.
The initiative has been welcomed by both artists and lawyers as a timely intervention when many in the artist community believe that artistic freedom is under threat from society and institutions, as well as the government. Several artists have been hauled to the courts in recent years for their works. Cartoonist Rachita Taneja, the creator of web comic Sanitary Panels, is facing contempt of court for posts criticising the Supreme Court. Others like comedians Tanmay Bhatt and Kunal Kamra have also come under fire. Recently, the Bombay High Court quashed a nine-year-old case against ceramic artist Vineet Kacker, who had angered some sections of society by painting images of gods and goddesses on ceramic slippers.
“The only unfettered freedom that we truly enjoy is the freedom of thought,” says Supreme Court lawyer Akhil Sibal. “What concerns me is that we have (been)—of course, in the last many years, and it seems to be increasing day by day—reading about and witnessing the unwarranted harassment of artists through the law, through an intolerant mindset. I worry that it has, and continues to have, a chilling effect on artists. And the day that artists decide to play it safe and to sanitise their artistic expression, we will be a society diminished, and it’s already happening,” he adds.
Sibal, who represented Husain in his “obscenity” case, says it is necessary to preserve creativity and push the envelope, which artistic expression must continue to do. “Artists are meant to push boundaries, challenge the status quo. They are meant to provoke us to improve and grow. They can only do that if, to some extent, they have the right to offend,” he adds.
“Nobody wants to go into court cases unless required,” says contemporary dancer Paramita Saha, a Global Fellow of International Society of Performing Arts, and founding member of Unmute. “It is not only about laws, but which law and which time, and also which is the best law in a given situation,” adds Saha, referring to the utility of a resource centre that would help in creating awareness about laws and rights concerning artists. Unmute, which is available currently in English and Bengali, will have a Hindi version soon, says Kolkata-based Saha.
The pandemic has exposed the existing toxic atmosphere of abuses within the artist community, especially abuse of power and sexual harassment. Artists have silently suffered in the hundreds of dance companies and dance schools across the country, most of them unable or unwilling to break from the guru-shishya tradition that offers protection to the perpetrators of sexual and emotional abuse. “Abuse of power is the biggest problem,” says Saha. “You are always meant to follow the people in powerful positions, the guru-shishya positions, and never raise your voice. It is a huge problem and there needs to be a space for raising your voice,” she adds.
Months before the pandemic there was fightback against sexual harassment by powerful people within the performing arts community when several students of Dhrupad Sansthan—a well-known music school in Madhya Pradesh—came out against its founders, award-winning vocalist brothers Umakant Gundecha and Ramakant Gundecha, and their relative and pakhawaj artist Akhilesh Gundecha. Though the school has since been closed temporarily, the artist community feels there has been little justice for the survivors of sexual abuse.
Kavita Singh, assistant professor of criminology and victimology at West Bengal National University of Juridical Sciences, Kolkata, says there are several provisions in the Indian Penal Code that come to play in cases of sexual harassment against artists. “Artists from specific communities like LGBTQ, artists living with trauma and disabilities, all need the protection of law,” says Professor Singh, a member of Unmute’s advisory committee. “Laws like Sexual Harassment of Women at Workplace Act 2013, Protection of Women from Domestic Violence Act 2005 and Rights of Persons with Disabilities Act 2016 are available to help victims in the field of arts,” she adds.
Other legal provisions such as the Indian Copyright Act 1957—which received an amendment in 2012—and the Antiquities and Art Treasures Act 1972 guarantee against plagiarism and fake works. Now, with the pandemic proving to be a boon for digital art in the country, there is a growing concern among artists about illegal distribution of digital works. However, new blockchain-powered platforms launched recently in the country discount any such possibilities by ensuring authenticity of artworks through Non-Fungible Tokens (NFTs). “NFTs, created using token standards, enable users to link their collectibles, digital or physical, to a unique token, with ownership of that token residing with the person who mints or creates it,” says Aparajita Jain, founder of Terrain-art, a blockchain-powered online platform in the Indian art market. “Ours is a platform where artworks can be registered and assigned a digital token, and made available for sale on the marketplace, providing collectors a transparent, secure, and tamper-proof method of adding to their artwork collection,” adds Jain.
Famed artist and Kochi Biennale Foundation president Bose Krishnamachari says there are many aspects of laws dealing with art, all of them complicated. “There are laws, but most of us artists are not aware of them,” he says. “There are laws dealing with art transportation and insurance. Also, import and export of artworks. There is a high customs duty on importing artworks. Once I brought artwork from London for an exhibition and had to pay `80 lakh as bank guarantee. Even after the work went back, it took a long time to get the money back from the bank. The laws that stipulate artworks older than a particular period can’t go outside the country, those laws are okay,” he adds.
Well-known art and antiquities lawyer Siddharth Mehta, who often delivers lectures on art law across the country, considers the legal framework concerning art in India as a confluence of contract, intellectual property rights and antiquities. “We don’t have a consolidated art law in our country. Most other countries don’t, but some have created multiple verticals with overlaps, while we just have intellectual property rights laws,” says Mumbai-based Mehta. Art laws come into work, for example, mainly in identifying works, disputes in connection with works, commercial purchases and collateral securities, says Mehta, managing partner of the law firm Mehta & Padamsey.
“There is the whole litany of rights. The body of rights continues to be with the author of a work even after it is sold. But what are your rights as an artist? You may own the painting, but can you make a copy of it? It is not a natural ‘yes’ or ‘no’ question. Also, you can have copyright without owning a work. Then there are the moral rights held by the author,” adds Mehta. “We need to make it clear not just for artists, but also for judiciary, for increased awareness of the difference in forms. Involvement of an artist in the creation of an artwork and the life of an artwork itself needs to be examined because the life of an artwork goes beyond the artist. We have to move towards examining a work of art, perhaps as an individual having a life of its own. We have to look at artists and owners as trustees or guardians.”
The rising cases of intolerance against artists and their works alarm many in the art community. “Art has always been a soft target of physical attack and creative restrictions to express ideological superiority,” says curator and art critic Premjish Achari. “This also happened because the attackers had realised the power of images. This has been going on since ancient times. Attacks against artworks are not only the result of vandalism, but also executed through censorship and erasure,” he adds.
“We do not have strong laws to protect artworks and the artist against public sentiment. What we have in the legal framework currently is not adequate enough to understand the cultural significance of both the artwork and the artist. I wonder if it will ever be possible to grant that immunity to cultural expression. Also, what we need to realise is that, in contemporary times, the excessive consumption and production of images have reconfigured the nature of the artwork. New laws will have to consider the changing dynamics and the ontological nature of the artwork,” says Achari.
Mehta says members of the art community don’t have any choice but to create forums and associations to protect themselves. “If the law had already provided adequate protection and awareness, these organisations wouldn’t exist. We have seen it play out in the West where they have associations for artists, architects and musicians. You are going to see more such in India, particularly in the visual arts field. You will also see organisations from gallerists. What will become more interesting is how one group will start interacting with other groups,” he says.
Legal framework for the arts
— Indian Copyright Act 1957
— Patents Act 1970
— Designs Act 2000
— Trade Marks Act 1999
— Copyright Amendment Act, 2012
— Antiquities and Art Treasures Act 1972
— Insurance Act 1938
— Central Excise Act 1944
Several people across generations think the time has come to bring forth arts and the law into mainstream discussion
—Arshiya Sethi, arts activist and dance scholar
Artists are meant to push boundaries, challenge the status quo. They are meant to provoke us to improve and grow
—Akhil Sibal, Supreme Court lawyer
There are laws, but most of us artists are not aware of them
—Bose Krishnamachari, president, Kochi Biennale Foundation
We have to move towards examining a work of art, perhaps, as an individual having a life of its own. We have to look at artists and owners as trustees or guardians
—Siddharth Mehta, art and antiquities lawyer
Faizal Khan is a freelancer