M. F. HUSSAIN – SECULAR HOLY COW OR MARKET-DRIVEN PEDDLER?

ART IS BIG BUSINESS

The organisers of India Art Summit 2008 decided to exclude MFH’s paintings from the
displays for fear of protests by Hindu organisations. Even in the 2009 summit MFH’s
paintings were officially excluded. The exhibition was conducted between August 22
& 24 last year at Pragati Maidan in New Dlehi.

After this SAHMAT (Safdar Hashmi Memorial Trust) went ahead and conducted its own
exhibition of MFH’s paintings. Some Hindu organisations did protest and reproductions
of some paintings were reportedly damaged.

The secular brigade was up in arms against the government for not being able to
protect an international art exhibition.

For the left-wing (euphemism for communist-backed, anti-Hindu) SAHMAT it is routine

to mark its protest against activities of Hindu organisations.

However, the narrative is not as simple or innocent as it seems.

For the organisers of India Art Summit, the stakes are high, for art is big business. Art
pieces are high value currency in the world of billionaires. Art, art valuations,
restoration of antique art pieces, forgeries, espionage and intrigues – all comprise a
multi-billion dollar industry.

Sunil Gautam, the managing director of Hammer MS & L, which organises the India Art
Summit, was reported to have said that the Indian art market was worth Rs 1,500
crore in 2008 and growing at a whopping 35% every year. Phillip Hoffmen, who owns
sixteen art funds across the world was reported to have said that twenty
billionaires are prowling the world art markets with deep pockets and willing to
splash $ 100 million (Rs 450 crore) each.

A possible disruption of high commerce might have forced the organisers of the art
summit to exclude MFH’s paintings. Could the same market forces be driving the
media frenzy in the subject?

MEDIA DEBATES

There have been ‘debates’ in Indian news channels on the eve of M. F. Hussain’s
ninety-fourth birth day and after news about Indian government’s efforts to bring back
M. F. Hussain from a self-imposed exile in Dubai was reported. Ostensibly the debates
were to discuss about freedom of expression, governments inactivity to intervene to
protect the organisers in holding the India Art Summit and MFH’s court cases.

That the media debates were purely one-sided needs no mention. Chandan Mitra on
NDTV and Praful Goradia on Times Now, presumably invited to voice the Hindu view
point were not allowed to get in a word edgewise. They were there merely for form.

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Akhil Sibal, M. F. Hussain’s high profile lawyer had the run of the debates on all the
channels. Looking suitably modest for a victor in two courts and a heart bleeding for
the cause of freedom of expression, he wallowed with pity for a civil society that has
not been standing up for freedom of expression - for his client.

Poornima Sethi, who represented one of the petitioners in the Delhi High Court, or
Vinayak Dixit, Nishant Katneshwarkar, Sunil Kumar Verma advocates who argued the
case in the Supreme Court were conspicuous by their absence! If they were invited,
their presence or participation – if indeed they were allowed to participate - would
have complicated the debate/s.

In another debate, Seshadri Chari was roundly snubbed by Anjolie Ela Menon who
refused to even consider his view point. A while ago, Menon announced her secular
credentials, when in a Letter to the Editor of Outlook – obviously celebrities too write
letters to the editors - she took umbrage against the former CEC, Gopalaswamy for
wearing the ‘thirunamam’ on his forehead, but that is another matter. For her,
Hussain was doing along fine in Dubai enjoying himself with fast cars, chaperoned by
fast girls (the channel showed a clipping) and is not very keen to come back.

A pearl of wisdom she dropped for the benefit of viewers was that Hindu gods and
goddesses were never clothed till Raja Ravi Varma came along and clothed them! All
those descriptions in scriptures, of gods and goddesses wearing silken robes and
ornaments studded with precious stones were made up by the twenty-first century
‘Internet Hindutva brigade’ the new foil for the ‘Sangh Parivar’ in the lexicon of left-
liberal intelligentsia!

The debates on the issue, in general, were replete with half-truths and untruths freely
bandied about and to use Richard Nixon’s famous quote, fairly economised with the
truth!

FREQUENTLY RAISED ISSUES

I: The paintings are not viewed by many. In fact they are for the delectation of a
minuscule minority who have a taste for them. Why should the majority object to
them?

Fact: The test of minuscule-minority consumption could equally be applied to

recreational drugs. Should we legalise them?

I: There are erotic sculptures in Hindu temples. Why should people object to erotic
art?

Fact: Only a handful of temples out the millions that exist in the country contain
erotic art. The Hindus do not worship these sculptures but they do Durga, Saraswathi
and Sita, the subjects of Hussain’s nude paintings. The antecedents of erotic bas-
reliefs in temple architecture are social and not religious.

I: A group of eminent persons nominated MFH for an award of the Bharat Ratna.

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Fact: They seem to have done this more to express their solidarity with MFH under
attack from the aggrieved Hindus than with any serious intent.

Would they – or other champions of freedom of expression like SAHMAT - be willing to

nominate Dan Brown or Tasleema Nasrin for a Sahitya Akademy award or the Danish
cartoonist for a similar honour?

For the record, this article does not support either the American novelist or the
Bangladeshi writer or the Danish cartoonist inasmuch as they hurt the religious
sentiments of Christians or Muslims.

I: MFH has not painted any Hindu god or goddess - in the nude – in the last thirty or
forty years. The current imbroglio is because of purely political reasons and nothing
else.

Fact: The information super highway, popularly known as the internet is less than
fifteen years old, at least in India. MFH’s paintings were displayed on his website,
www.mfhussain.com, which is currently not accessible, presumably because it has
been withdrawn. Quite a few who are aghast at MFH’s paintings were able to
reproduce them on other websites, to show how offensive they were.

If one were to pose a hypothetical question, if someone committed a heinous crime

thirty or forty years ago which has come to light only now, should he be exonerated
on the score of the crime’s antiquity?

Fact: MFH did a painting for Deccan Chronicle which the paper published on March 8,
2009 on the occasion of the International Women’s Day. The painting was entitled
‘Shakti’. In order to remove any doubt that the woman in the painting was of an urban
professional by name Shakti - but of the goddess Shakti - the woman was shown
standing astride a tiger. However, this time Hussain deigned to clothe the goddess – in
a tee-shirt, jeans and shoes, probably as a concession to the Internet Hindutva
brigade!

I: MFH considers nudity as the purest form of expression.

Fact: Does it mean MFH does not find purity anywhere else except in Hindu gods and
goddesses.

I: The Supreme Court of India heard and dismissed criminal cases against MFH. As the
SC is the court of last resort in India everyone should respect its judgement and let the
matter rest.

Fact: The SC has pronounced its judgement in an appeal against a Delhi High Court
judgement. The DHC judgement pertains to several criminal cases transferred to it by
the SC and not against MFH’s paintings in general (see below).

According to the SC record (accessible from the internet), the apex court ‘Heard’ and
‘dismissed’ the Special Leave to Appeal (Crl) No(s).6287/2008 on September 8, 2008.

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Any thing else reported in the media is an obiter dictum, (dicta in plural), an opinion
voiced by a judge that has only incidental bearing on the case in question and is
therefore not binding.

The following observations of the CJI are obiter dicta: “There are so many such
subjects, photographs and publications. Will you file cases against all of them?” and
“It (Husain’s work) is art. If you don’t want to see it, then don’t see it. There are so
many such art forms in the (Hindu) temple structures.” The secular media latched on
to these obiter dicta and widely publicised them.

[The DHC judgement, while summing up the status of obscenity laws in various
countries explains Section 292 of the Indian Penal Code (1860) and lists certain
exceptions to its applicability. One of these relates to “any representation sculptured,
engraved, painted or otherwise represented on or in - (i) any ancient monument
within the meaning of the Ancient Monuments and Archaeological Sites and Remains
Act,1958 (24 of 58), or (ii) any temple, or any car used for the conveyance of idols, or
kept or used for any religious purpose.”]

If a statute contains certain exceptions, does it not follow that the exceptions
could not be or should not be used as precedents in defence of alleged violations
of the selfsame law? Were not these very same erotic representations in
engraved sculptures in ancient monuments, archaeological sites and remains -
which are listed as exceptions in the statute - used as the principal alibi for
defending the nude paintings of gods and goddesses? The supreme irony of the
situation seems to have been lost on all stakeholders in the dispute!

Another instance of obiter dictum is Justice Markandeya Katju’s observation,

“Talibanisation of the country cannot be permitted” in the recent case of Md. Salim a
class X student vs. Nirmala Convent School (in Madhya Pradesh's Vidisha district). Md.
Salim was rusticated by the school for refusing to remove his beard. He approached
the HC and then the SC both of which dismissed his case. On a revision petition, the
judge apologised for his obiter dictum and excused himself from the case. The revision
petition was heard by another bench which ruled in Md. Salim’s favour.

I: The Delhi High Court exonerated MFH of all culpability in all the criminal cases filed
against him.

I: While dismissing the criminal cases, Justice Sanjay Kishan Kaul of the DHC observed,
“A painter at 90 deserves to be in his home painting his canvass!”

Fact: On a petition by MFH the SC transferred cases in various courts (Pandharpur,

Maharashtra; Rajkot, Gujarat; Indore and Bhopal, Madhya Pradesh) to the DHC to be
heard together.

Many complainants of the original cases were not able to appear before the DHC. This
is probably because the complainants in remote locations can not afford to engage
high profile lawyers who charge by the clock to fight cases in far away Delhi.

For the wealthy MFH there were no such constraints and he was able to engage a
battery of the best lawyers in Delhi.

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Fact: The secular media picked up the last sentence of the 130-paragraph, 29-page
judgement and went to town with it, as if the rest did not matter. The following
observations of the Honourable Justice were airbrushed:

“In my considered view, the alleged past misconduct of the petitioner cannot have any
bearing on the present case because there has been nothing which has come on record
to prove the converse.

“It is made clear that the paintings depicting Hindu Gods / Goddesses in nude by the
petitioner do not form a subject matter of the present case and as such the learned
counsels have been unable to bring to the notice of this court any cases/complaints
pending or decided in this regard to go against the petitioner.

“The persons who may feel aggrieved by those set of paintings have an appropriate
remedy in law to get their rights redressed.

Hence, commenting on those paintings would be prejudging the said paintings and
passing a verdict on the same thus prejudicing the rights of the accused/petitioner.”
(Para 103)

I: On what grounds could the DHC judgement be faulted or termed flawed?

Fact: The following sources the learned judge used as reference points for drafting
the judgement are indicative of a certain ideological perspective.

1. Excerpted from Hindutva: Exploring the Idea of Hindu Nationalism, Jyotirmaya

Sharma, Penguin Books India, Viking, accessible from:
http://www.hinduonnet.com/lr/2003/12/07/stories/2003120700100100.htm.

2. Love and Lust - An anthology of Erotic Literature from Ancient and Medieval India;
Pavan K. Verma Sandhya Mulchandani; Harper Collins Publishers. 2004.

3. Prudes take charge in India, The Independent (London), Jun 7, 1998; Peter Popham
accessible from:
http://findarticles.com/p/articles/mi_qn4158/is_19980607pnum=2andopg=n14161393.

The Hindu of Madras and The Independent of London are known to be staunchly left-
leaning. In many instances, The Hindu refused to entertain alternative view points
even in its Letters to the Editor columns. As for Pavan K. Verma, it is a well known
fact that in India it is difficult for any except the left-leaning authors to be published.

Fact: Seventeen of the twenty sources cited by the learned judge are from internet
sources. Therefore the omission of the following pertaining to a case which is an exact
parallel to the instant case was surprising:

Freedom of religion and other beliefs. (1994). Otto-Preminger-Institut v. Austria,

(13470/87) [1994] ECHR 26 (20 September 1994). Accessible from:
http://www.hrcr.org/safrica/religion/Otto.html

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Otto Preminger Institute V Austria. (1994). Otto Preminger Institute v. Austria.
ARTICLES: 10; 26. Accessible from:
http://www.mediator.online.bg/eng/ottopr_e.htm

Fact: The DHC judgement seems to largely rely on the following internet source

Freedom of Art under seige In India. Pallabi Ghosal, accessible from:

http://www.legalserviceindia.com/articles/re_ind.htm.
The typo in ‘siege’ is as in the website. The article was written by Pallabi Ghosal - 4th
year NLIU, Bhopal, presumably a fourth year law student of NLIU, Bhopal at the time.
The quote from Pablo Picasso, the references to Shiva Linga as Prakruti and Purusha,
erotic representation in temple architecture, and some of the cases cited in the
judgement - are from this article.

Fact: The DHC judgement explains at length Article 19 of the Constitution of India
which provides for freedom of expression. Clause (2) of the article “allows the State
to impose restriction on the exercise of this freedom in the interest of public decency
and morality.”

The judgment comments on this: “A bare reading of the above shows that obscenity
which is offensive to public decency and morality is outside the purview of the
protection of free speech and expression, because the Article dealing with the right
itself excludes it.” (Para 46 & 47)

Obscenity without a preponderating social purpose or profit cannot have the

Constitutional protection of free speech or expression. Obscenity is treating with sex
in a manner appealing to the carnal side of human nature or having that tendency.
Such a treating with sex is offensive to modesty and decency. (Para 67)

It is difficult to reconcile these observations with the conclusion of the judgement. For
instance, how could one conclude that the paintings in question do not offend public
decency and morality; they achieve the preponderating social purpose or profit and do
not appeal to the carnal side of human nature or having that tendency?

And why was the following plea of the respondents brushed aside? “The valuable and
cherished right of freedom of expression and speech may at times have to be
subjected to reasonable subordination to social interests, needs and necessities to
preserve the very core of democratic life preservation of public order and rule of
law” (Para 83)

EPILOGUE

In August 2009, Yale University Press in the US published a scholarly work entitled,
“The Cartoons that Shook the World” by Professor Jytte Klausen. In spite of protests
from Yale alumni and the American Association of University Professors, the publishers
of the book felt obliged to expunge reproductions of the cartoons along with all other
images of Prophet Muhammad.

Nearer home, the Indian government did its best to scuttle the production of the
movie, ‘Indian Summer’ based on the historical work, ‘Indian Summer: The Secret

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History of the End of an Empire’. This was because the portrayal of the well
documented Nehru-Edwina romance would hurt the personal sentiments of one family.

In the case of YUP, it was pragmatism that drove it to expunge objectionable material.
In the case of the Indian government it was sycophancy that drove it to placate to the
ego-centrism of a family.

Should not the sentiments of a billion Hindus count in the debate on freedom of
expression? The debate in general does not seem to have addressed some fundamental
questions:

• Is artistic freedom absolute? Or, are there no limitations to artistic freedom?

• Could a painter ‘express his adoration for the highest form of purity’ by ‘painting’
a living being – a celebrity for instance?

• Or, does an artist’s ‘expression for the highest form of purity’ applies only to
Hindu gods and goddesses?

• What about the freedom of expression of those who are offended by MFH’s
paintings?

• Do they or do they not have the freedom to practice their religion with dignity?

Further Reading:

Artistic Freedom & Social Responsibility, accessible from:

http://voxindica.blogspot.com/2007/06/artistic-freedom-social-responsibility.html

Deccan Chronicle Apologises - Hussain Doesn't! accessible from:

http://voxindica.blogspot.com/2009/04/oscar-awards-ceremony-this-year-was.html

Obiter Dicta on Artistic Freedom & Social Responsibility, accessible from:

http://voxindica.blogspot.com/2008/09/did-delhi-high-court-grant-m-f-hussein_13.html