Bombay High Court: In the present case, petitioner challenged the order dated 01-07-2024 issued by Respondent 3, the Assistant Commissioner of Customs (‘ACC’) for confiscating the drawings by world-renowned artists, FN Souza and Akbar Padamsee on the ground that such artworks were “obscene”. Apart from confiscating the artworks, the impugned order dated 01-07-2024 also imposed a fine of Rs 50,000 on petitioner, being an importer. The Division Bench of M.S. Sonak* and Jitendra Jain, JJ., opined that every nude painting or every painting depicting some sexual intercourse poses could not be styled as obscene. The Court thus held that the impugned order was unsustainable and must be quashed and set aside and further, directed Respondent 3 to release the confiscated artworks to petitioner.
Background
Petitioner, in 2022, purchased three drawings by Akbar Padamsee at an auction by Rosebery’s London and four by Francis Newton Souza from the auctioneers Lyon and Turnbull London. Thereafter, Petitioner booked Stephen Morris Shipping PLC, Greenford City London, UK, through FedEx for the seven quantities of Padamsee and Souza artworks. The invoices specifically mentioned that the consignment from London to India was “nude drawings” after considering the provisions of the Customs Act, 1962, and to ward off the charge of any misdeclaration and suppression.
Petitioner submitted that when the artwork reached India, the Customs officials threatened not just confiscation but also destruction of the artworks. Petitioner pleaded that under wrong representation from FedEx that the artworks fall under the category of “obscene material”, petitioner, being wholly misled, wrote to the Customs Authorities on 17-04-2023 seeking permission to re-export the artworks. However, on 20-04-2023, the Airport Special Cargo Commissionerate customs officials seized all the seven Padamsee and Souza artworks and on 01-07-2024, Respondent 3 made the impugned order confiscating the artworks and imposing a penalty of Rs 50,000.
Analysis, Law, and Decision
The Court stated that the artworks undoubtedly depicted nude in some sexual poses, but the issue for consideration was whether they were “obscene”.
The Court opined that the ACC relied entirely on his personal interpretation of obscenity and neither bothered to seek any experts’ opinion on the subject nor even looked into the reports, expert opinions and other material submitted by petitioner to contend otherwise. The Court stated that the ACC’s reasoning showed an “Ipse Dixit” approach, wherein he concluded that anything depicting nudity was inherently obscene.
The Court stated that the ACC dismissed the submissions of the Customs that “the works of artists like Souza and Padamsee are work of art and not obscene” and the ACC had observed that “‘the same rationale can be applied only in case of identical drawings/paintings. The extent of depiction of nudity in different drawings can be different which at one point may not be upto the level of obscenity but at other point may be upto that level so that goods can be considered nude. In this case, from the available drawings in the file the subject drawings are completely nude with some sexual intercourse position”.
The Court opined that every nude painting or every painting depicting some sexual intercourse poses could not be styled as obscene.
The Court reviewed the ACC’s impugned order dated 01-07-2024 in the context of Notification No.1/1964-Customs dated 18-01-1964 and opined that the same suffered from perversity and unreasonableness. The Court stated that the ACC, obsessed with his notions of obscenity, had confiscated, and possibly directed the destruction of the artworks of Padamsee and Souza and relied solely on his conviction that any artwork depicting nudity or sexual intercourse was inherently obscene. He disregarded the artists’ prominence and expertise and the fact that many art experts and judicial precedents had recognised these works as significant artworks and not obscenity. The ACC failed to appreciate that “Sex and obscenity are not always synonymous”. Obscene material is that which deals with sex in a manner appealing to prurient interest.
The Court opined that the option of banning, censoring, prohibiting the import or even destroying the artworks feted by world expertise based entirely on personal opinions, likes, and dislikes of a public official was unacceptable.
The Court stated that the views of the writer of a play, the metre of a poet or the sketches of a cartoonist might not be palatable to those who were criticized. Those who disagree have a simple expedient of not watching a film, not turning the pages of the book, or not hearing what was not music to their ears. The Constitution did not permit those in authority who disagree, to crush the freedom of others to believe, think, and express.
The Court stated that the impugned order ignores most relevant considerations like expert opinions, appeals from experts, artistic value, contemporary community standards, and several legal precedents on the subject. The Court further stated that the impugned order was based on irrelevant considerations like the ACC’s individualized standards of morality and decency, his personal opinions and prejudices on the topic of obscenity, the fact that petitioner had declared that the goods were “nude paintings”, and some of the artworks depicted sexual intercourse poses. The Court thus held that the impugned order was unsustainable, must be quashed, and set aside.
The Court stated that the Customs laws of India did not insist that Michelangelo’s David be fully clothed before he passes through our Customs Borders and an ACC could not lightly and without adverting to relevant considerations assume the mantle of being a spokesperson for community standards. Thus, the Court directed Respondent 3 to release the confiscated artworks to petitioner.
[B.K. Polimex India (P) Ltd. v. Union of India, 2024 SCC OnLine Bom 3460, decided on 25-10-2024]
*Judgment authored by: Justice M.S. Sonak
Advocates who appeared in this case:
For the Petitioner: Shreyas Shrivastava a/w Saurabh Shrivastava and Shraddha Swarup for the Petitioner.
For the Respondents: Jitendra B Mishra, a/w Abhishek Mishra and Rupesh Dubey for the Respondents.
