Disha (A Society Registered Under ... vs Union Of India (Uoi) And Anr.
2005 Latest Caselaw 929 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner `Disha' is a Society registered under the Societies Registration Act. It claims to be engaged in promoting art and finding out new talent. It supports creative artists and works towards generating resources for artists. Petitioner society being deeply interested in development of art and culture, filed the present petition against Union of India thorough its Secretary, Department of Culture, respondent No. 1 herein and the National Gallery of Modern Art imp leaded as respondent No. 2.

2. Petitioner prays for quashing of entire purchase of art work done by the Advisory Committee of Bombay Art Gallery of respondent No. 2 for the year 2000-2001. Additionally, a mandamus is sought directing the respondents to follow the prescribed procedure for purchase of work through the Art Purchase Committee. The basis grievance in the writ petition is that the instead of purchase being done by the Art Purchase Committee, purchases have been made the Advisory Committee of the National Arts Gallery, Bombay. It is contended that the role of the Advisory Committee is to render advice in academic matters and not to make purchases.

3. Respondent No. 2 does not have a separate constitution but operates as a subordinate office of Department of Culture, Government of India, respondent No. 1. Respondent No. 2 has laid down the objectives and activities of respondent No. 1, which primarily include preservation of art, purchase of paintings and sculpture, graphics etc from artists/sculptors from all over the country of different vintage and preserve them in the museums of respondent No. 1. Respondent No. 2 is thereby expected to serve promotion of contemporary art and present them for public view and thereby preserve the rich heritage and culture of India.

4. Petitioner contends that respondent No. 1 constitutes a committee known as the "Art Purchase Committee " comprising eminent artists, art critics, non-official members and government nominees. The committee is normally chaired by an eminent artist. Apart from the artists, art critics and non-official members, it has government nominees comprising senior officers, financial advisors from the Department of Culture etc. It also has representative from reputed art academies. The Advisory Committee referred to earlier is a committee formed to advise respondent No. 2 on academic matters and this committee was introduced in the year 1994.

5. Petitioner's grievance in the writ petition is that Government of India had made available funds to the extent of Rs.90 lakhs for purchase of paintings, sculptures and photographs for the year 2000-2001. The usual procedure had been to take out advertisements in leading newspapers in English as well as in Hindi and several other regional languages inviting artists to submit original art work,sculptures and photographs etc for selection by respondent No. 2. Respondent No. 2 did not make selection of art work or purchase through Art Purchase Committee, which was not constituted after the expiry of its term and instead purchases were made by the "Advisory Committee " of the Mumbai Art Gallery of respondent No. 2. The entire process of purchase of paintings by the "Advisory Committee " of the Mumbai Art Gallery was being done without issuance of advertisements as was normally done during previous years.

6. It is alleged that artists from all over the country did not participate and get the opportunity to offer their artistic work for selection. The Advisory Committee of respondent No. 2 in Bombay considered paintings of only a handful and select group of artists, who were invited to offer their works. It is alleged that only 10 paintings for a sum of Rs.45 to 50 lacs have been purchased, whereas in the previous years for the same amount,30 to 45 art works had been purchased. This was a case where purchases had been made without any advertisement or intimation to artists through out the country to participate. It is alleged that purchases were made from Arts Galleries, whose owners were members of Advisory Committee and exorbitant prices have been paid. The members of the Advisory Committee run their private Art Galleries, from which purchases have been made. Petitioner alleges that there was no government official or nominee amongst the members of the Advisory Committee, who made the purchases. The committee had only been chaired by the Honorary Director of respondent No. 2 at Bombay. Petitioner contends that purchases from these private Art Galleries have resulted in exploitation of artists inasmuch as private art galleries make the purchases from these artists at a meager amount and have been able to sell it to respondent No. 2 at exorbitant prices. In the circumstances, quashing of entire purchase of art work done for the year 2000-2001 is sought. This petition was accompanied by an application seeking stay on the further release of funds for purchase.

7. Notice to show cause in the writ petition and notice in the stay application was issued on 11th April, 2001. Vide order dated 19th July, 2001, it was directed that out of Rs.90 lakhs for the financial year 2000-2001, if some amount had not been disbursed, same be not disbursed. Interim order, continued till 2nd November, 2001 when respondents in their reply affidavit stated that payments had already been released towards the purchase of paintings made by the Advisory Committee for the year 2000-2001 prior to the order of this court passed on 19.7.2001. Respondents also filed an additional affidavit. The Division Bench which had been dealing with this petition as a Public Interest Litigation, vide orders dated 28th March, 2003 declined to treat it as a public interest petition since the petitioner was equally interested in the matter and in the sale of its paintings. It was directed to be placed before the learned Single Judge taking up such matters.

8. The respondents by way of affidavit in response to the averments in the writ petition, took the stand that on account of verbal communication from Ministry of Culture, the Art Advisory Committee was asked to function as Art Purchase Committee since the new Art Purchase Committee had not been reconstituted. The respondents sought to justify the purchases being done through Art Purchase Committee on the ground that response received to the advertisements in the national dailies were not up to the mark and expectation of the committee. As such only few art works could be selected from those art submissions. The decision was therefore taken to go in for proactive sourcing and build up a body of collections from individual artists and other sources in the country and for this purpose, the committee travelled to important art centres and visited studios of eminent senior artists and important galleries to source important art works. It was felt that respondent No. 2 should not lose a chance to acquire important art works which may not be available at a later stage. Accordingly, after due approval of the Competent Authority, 65 art works amounting to Rs.44.40 lakhs were purchased in the year 2003-2004 and 61 art works amounting to Rs.43.60 lakhs from the above selections were acquired out of the funds allocated for the respective financial years in order to enrich the permanent collections of the Gallery. Respondents denied any favoritism or nepotism committed in purchases.

9. On 4th December, 2003, counsel for the petitioner made certain suggestions, which were given to the respondents for consideration and to work out the modalities for future purchase of art works so that no such grievance as had occurred in the current period, arises in future. Respondents were directed to consider the suggestions made for future purchases and to file an affidavit. The matter had been adjourned from time to time, to enable filing of the affidavit.

10. When the matter was taken up on 4th January, 2005, counsel for the petitioner submitted that financial year would be coming to an end and funds are generally utilized before the end of financial year. He further submitted that petition contains allegations that in the past substantial purchases forming 30% to 40% of the entire allocation had been made by the members of the Committee by purchase of works of their own members or from their Art Galleries. The Bench inquired as to what was the amount that was likely to be spent between January, 2005 and 31st March, 2005. It was stated that amount was about Rs.19.5 lakhs out of the total budgetary provision of Rs.20 lakhs. Respondents were directed to take a decision forthwith by the Competent Authority on the suggestions and to file an affidavit within two weeks and till the affidavit was filed and the matter was considered by the court, respondents would not make any purchase.

11. The matter was argued at length and counsel for the petitioner and respondents have been heard and judgment reserved on 27th May, 2005.

It may be noted that during the course of hearing, learned counsel for the petitioner submitted that even though the petitioner had genuine grievance regarding denial of opportunity to the petitioner and to the artists all over the country for purchase of their works, petitioner would be satisfied if these malpractices and misuse of funds comes to an end at least for the future. Learned counsel for the petitioner has taken me through some evidence on earlier purchases made. It was alleged that there are numerous instances where members of Arts Purchase Committee made purchases from arts galleries which belong to them or where they had interest. One cannot prohibit the purchase from an art gallery simply on the ground that its owner or person has substantial interest therein as a member of the Arts Purchase Committee.All that needs to be done is to ensure transparency so that works of art even if they belong to art galleries where members of the Arts Purchase Committee have an interest are purchased after due consideration and deliberation by all others. The composition of the Arts Purchase Committee should be comprising leading artists, art critics and nominees from Department of Culture. It should be such as to inspire confidence in the world of art.

12. Towards this end numerous suggestions were made by the petitioner. These were considered during the court hearing and the response of the respondents elicited. The court wishes to record that respondents adopted a positive attitude in an attempt to lay down a fair procedure and modalities for acquisition of art works. With some prodding from the Bench and the willingness displayed by the parties, it has been possible to devise workable modalities for acquisition of art works by a fair and transparent process.

The proposals/suggestions and decisions taken are given below:-

Sr.No. Suggestion Decision 1.

Advertisements should be issued for purchasing art works in the national newspapers and also in leading local newspapers in States all over India inviting artists to participate and offer their art work for purchase.

Respondents would now publish advertisements in 3 national dailies as well as in radio and television network to have a boarder coverage. The advertisements are required to be issued only when purchase to be made is for Rs.50,000/- or more.

2. There should only be one National Art Purchase Committee and not separate branch wise committee.

This suggestion was not found feasible on account of practical problems. It was felt that de-centralization into separate committees for each of the two national galleries at Mumbai and New Delhi to make purchases was required to have effective coverage.

3. There should be Government nominee from the Department of Culture, Financial Personnel from Department of Culture as were nominated in earlier Art Purchase Committee.

This suggestion was accepted. The Financial Advisor from the Ministry of Culture is already a member of the Committee for art purchase. Nominees from academia would also be considered for being appointed as members of committee for `Art Purchase'.

4. Nominated members out of artists, art critics and from art academies should not be repeated for at least five years after their term is over.

This suggestion has been accepted by the Union of India.

5. No paintings should be purchased from private galleries but should be directly purchased from artists.

This suggestion is not practically feasible and is divorced from ground realities. The collection in National Gallery of Modern Arts must represent important historical developments in the field of contemporary and modern art of the nation. It would not be possible to source art work of important artists directly from them. This is because private galleries have the expertise and collect impeccable art pieces. The private galleries have their own contribution to be made to art. While the respondents should make every endeavor to encourage purchase from individual artists, all purchases cannot be confined to individual artists. The respondents of necessity must have the discretion and freedom to source purchases where best of art work is available.

6. Purchase of art works from galleries owned by the members of the Arts Purchase Committee or wherein the members have an interest in the gallery.

There cannot be general prohibition on purchase not being effected through art gallery whose owner or shareholder is a member of the Arts Purchase Committee. Respondents in such a situation to ensure that member/members of the Arts Purchase Committee having interest in the gallery recuse themselves from participation in the deliberation for the purchase. Respondents should also ensure that composition of the Arts Purchase Committee is such that majority is formed from persons who do not own art gallery or have a share therein.

7. Price of painting should directly go to artists and not to any other concern/institution/gallery.

This suggestion cannot be accepted. Price has to be paid to the individual artists or from the institution from which art work is being purchased.

8. Art Purchase Committee should buy work of the same artist only after a gap of minimum 5 years to give opportunity to various artists to have variety of art works.

There can be no such general restriction or prohibition. The National Gallery of Modern Arts is expected to be the repository of modern and contemporary art. It needs to acquire all important artistic works of artists who excel reflecting various facets of their work. The suggestion that Art Purchase Committee should buy work of same artists after a gap of five years cannot be accepted and deserves rejection. However, with a view to put a check, in case more than three works of an artist are purchased in the same year, It may be done after sanction from the Ministry of Culture.

The decision to purchase a particular piece of art work is to be based on its evaluation by art critics. There cannot be total objectivity or mathematical precision in assessment, perceptions vary. There can be numerous factors in not buying a particular piece. For instance, if National Arts Gallery already has similar work, it would not find a place in the selection. However, there cannot be a requirement that art works from different states and each area have to be purchased to give chance to talented artists. Respondents are only required to ensure equal opportunity to the budding artists.

9. Art Purchase Committee should purchase art works from all different States from time to time and even from remote areas to give opportunities to poor talented artists who cannot afford to approach the NGMA.

Wide publicity is to be given through the national and important dailies and now the same will also be given through advertisements in radio and television in order to invite response from artists, collectors, galleries and individuals to offer their works for the permanent collection of the National Galleries of Modern Art. Besides, various fora like the Regional Centers of Lalit Kala Academy provide an opportunity to a potential artist to display his/her talent, which, if suitable, is taken cognizance by the Advisory Committee of the National Galleries Modern Arts. Incidentally, the essential function of reputed Academies is to promote younger and upcoming talent from different parts of the country.

10. All art works purchased should be displayed for at least one month in the Galleries and list of purchased work and artist be displayed on notice board of the NGMA.

The suggested practice is already being followed.

11. The Directors and Senior Officers of the galleries should be permanent employees who are accountable and not honorary members for short periods. Posts in the National Galleries are filled up on a regular basis after following due procedure laid down. However, when either the creation or sanction of the post is delayed, ad hoc arrangements are made by the Department of Culture in order to ensure smooth functioning of the gallery.

The aforesaid decisions as enumerated above are in response to various suggestions and deliberations during court hearing. These are not intended to be exhaustive but only to complement and supplement the existing Policy/Instructions. Respondents have agreed to comply with the above decisions and shall adhere to the same.

Writ petition stands disposed of in the above terms.