Mumbai: The Bombay high court on Friday directed the customs department to immediately, and within two weeks, release the confiscated seven artworks of artists Francis Newton Souza and Akbar Padamsee to the importer. The artworks were confiscated on the grounds that they were “obscene.”
“Every nude painting or every painting depicting some sexual intercourse poses cannot be styled as obscene,” said Justices Mahesh Sonak and Jitendra Jain. They allowed the petition by B K Polimex India Pvt Ltd, through its director, and quashed and set aside the July 1 order of assistant commissioner of customs (ACC), courier cell, Airport Special Cargo Commissionerate, confiscating the seven nude drawings.
“The reasoning in the impugned order is quite perverse. Therefore, judged by the law laid down by the Supreme Court and other high courts in such matters, we are satisfied that the impugned order is unsustainable…,” they added.
In June and Oct 2022, three drawings of Padamsee and four of Souza, titled ‘Lovers’, were purchased from auction houses in London. After they reached Mumbai, in April, customs seized them.
On July 1, the confiscation order was passed and a Rs 50,000 penalty imposed.
The judges said the matter could not have been decided by the ACC repeatedly focusing on the fact that the artworks were of nudes, some portrayed sexual intercourse positions and were therefore necessarily obscene. They agreed with the petitioner’s advocate, Shreyas Shrivastava, that the ACC ignored relevant considerations like experts’ opinions and appeals, artistic value, contemporary community standards, and several legal precedents. “It is based mainly on irrelevant considerations like the ACC’s individualised standards of morality and decency, his personal opinions and prejudices on the topic of obscenity…,” they said. Also, the circumstance that similar artworks are available in the domestic market or displayed in prestigious art galleries nationally and internationally was ignored, the HC said.
“The customs laws of India do not insist that Michelangelo’s David be fully clothed before he passes through our customs borders. An ACC cannot lightly and without adverting to relevant considerations assume the mantle of being a spokesperson for community standards. Just as one swallow does not make a summer, so also one such decision of one such ACC does not make the law on this subject.”
Customs’s advocate Jitendra Mishra said it relied on a Jan 1964 notification issued under the Customs Act section that gives power to the Centre to prohibit import for maintenance of public order and standards of decency or morality. The judges noted that the ACC had acknowledged ‘obscene’ is not defined in the Act or notification and referred to Oxford dictionary to conclude they are prohibited goods.
While Mishra said the petitioner has alternative remedy, the judges said considering the ACC’s severe observations, they are unsure he might destroy these artworks if the petitioner were to be relegated to alternative remedy of departmental appeals etc.
HC said ACC should not have entirely ignored artistic merit and worldwide recognition the artists have garnered. They said his private views “however respectable or otherwise they may be, cannot be seeping into official decision-making”.
