“Sex and obscenity are not always synonymous…” said the Bombay high court on Friday while directing the Mumbai Customs to expeditiously release seven artworks by Francis N Souza and Akbar Padamsee that they had confiscated on grounds of obscenity.
As first reported by HT on Thursday, Mumbai businessman Mustafa Karachiwala had acquired a folio of four erotic drawings by FN Souza and another drawing and two photographs of a woman in the nude by Akbar Padamsee in 2022. But when he tried to get them into the country, the Mumbai Customs, using a 1964 notification, cited obscenity and confiscated them.
In addition, Karachiwala was fined ₹50,000 and asked to show cause as to why the department should not destroy these artworks. Karachiwala appealed the Mumbai Customs decision in the high court, which ruled in his favour.
The court observed that the Customs officer cannot assume the mantle of being a spokesperson for community standards. “One such decision of Customs does not make the law on this subject,” noted the division bench of justices MS Sonak and JS Jain. The court also dismissed the claim that the importer wanted to take advantage of the reputation of two renowned artists for import of obscene/prohibited goods. Both Souza and Padamsee were part of the Progressive Artists’ Group which introduced European modernism to Indian art, and their works are among the most coveted by collectors in India.
The court added that while dealing with this matter — the eminence of the artists concerned, their expertise in the field, artistic value of the artworks, contemporary community standards, and also the view of the apex court on obscenity were completely ignored by Mumbai Customs. “In his (the officer’s) opinion, drawings that portray nudes or drawings that refer to some sexual intercourse positions are ‘obscene’ in all circumstances.” the order stated. “But sex and obscenity are not always related.”
The judges added “The ACC (assistant commissioner of customs), utterly obsessed with his notions of obscenity, has confiscated and possibly directed the destruction of the artworks… The ACC relies solely on his conviction that any artwork depicting nudity or sexual intercourse is 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 obscene.”
Counsels for Karachiwala, Shraddha Swarup and Shreyas Shrivastava, told HT that the court has directed the customs to immediately release the artworks to their client within two weeks.
Karachiwala said he was excited to “finally unbox the art I had acquired”. He said leading gallerists like Roshni Vadhera, Geeta Mehra and Conor Macklin had helped him in his legal battle by providing him guidance and the necessary certification for authentication.
