Maqbool Fida Husain v. Rajkumar Pandey
2008 Cri LJ 4107 : (2008) 2 CCR 392
In the High Court of Delhi
Cri. R.P. 114, 280, 282/2007
Before Justice Sanjay Kishan Kaul
Decided on May 08, 2008

Relevancy of the case: Whether a nude painting depicting the nation as a distressed woman is obscene?

Statutes and Provisions Involved

• The Information Technology Act, 2000 (Section 67)
• Indian Penal Code, 1860 (Section 292, 294, 298, 500)

Relevant Facts of the Case

• Maqbool Fida Hussain is a famous artist who made a contemporary painting. He sold this painting to a collector in 2004.
• The said painting depicts India in an abstract and graphical representation of a woman in the nude with her hair flowing in the form of the Himalayas, depicting her agony.
• In 2006, the painting, named ‘Bharat Mata’, was advertised on an online auction for earthquake victims.
• The advertisement led to protests, and complaints were filed against the artist nationwide.
• The petitioner approached the Supreme Court seeking consolidation of the matters. The Supreme Court transferred the complaints to a trial court in Delhi.

Prominent Arguments by the Advocates

• The petitioner’s counsel argued that he had no connection with the painting after he sold it to the collector. Further, he did not name the painting Bharat Mata, and neither did he have knowledge of the same. The petitioner did not intend to wound religious sentiments as the painting was not about religion. It was an anthropomorphic depiction of the nation.
• The respondent’s counsel submitted that the painting was up for sale on a website bearing the petitioner’s initials. The seller had named the painting “Mother India Nude Goddess”. Any person could access the painting, which could offend their religious or national emotions. The counsel also highlighted previous paintings of the petitioner where he depicted Hindu gods/goddesses in nude and erotic postures.

Opinion of the Bench:

• India has embraced different eras and civilisations, which have given her a colour of mystery. Art and authority have never had a difficult relationship until recently. Unfortunately, many artists who have tried to play around with nudity have come under scrutiny. In the context of nude paintings, looking at it from the artist’s perspective is essential.
• The bench also discussed leading case laws on obscenity from the United States of America, Canada, Australia, and the United Kingdom. These case laws include Roth v. United States (315 US 568), Regina v. Hicklin (1868 LR 3 QB 360), and Miller v. California (413 US 15).
• The bench also traced the judicial pronouncements on obscenity in India, starting from Ranjit D. Udeshi v. State of Maharashtra, AIR 1965 SC 881.
• Art must have an aesthetic or artistic touch. It should not be for the sole purpose of attracting prurient minds.
• Even if the art has something obscene, it should be so insignificant that it has no effect or can be overlooked.

Final Decision

• The court did not hold the petitioner liable and disposed of the petition.