Bombay High Court on Friday directed the Customs department to release the works of renowned artists FN Souza and Akbar Padamsee that were seized on the ground of being “obscene material”.
“Every nude painting or every painting depicting some sexual intercourse poses cannot be styled as obscene,” the court observed, directing the Customs to release the artwork immediately.
The bench of Justices MS Sonak and Jitendra Jain quashed a July 2024 order passed by the Assistant Commissioner of Mumbai Customs after confiscating the artwork, noting that it “suffers from perversity and unreasonableness.”
“The Assistant Commissioner of Customs has 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. Such an order, in our opinion, is unsustainable and must go,” the court said.
The bench was hearing a petition filed by a firm, BK Polimex India Pvt Ltd, owned by city-based businessman and art connoisseur Mustafa Karachiwala, against the department’s order.
The bench noted that the assistant commissioner had only focused on the fact that the artworks were “nudes” and in some cases portrayed sexual intercourse and, hence, were obscene.
“While not everyone is obliged to approve of, like or enjoy such artworks, the option of banning, censoring, prohibiting the import or even destroying such artworks feted by world expertise based entirely on personal opinions, likes and dislikes of a public official is simply unacceptable,” the bench added.
Further, the bench said that officials are demanded by the rule of law to exercise their powers within the four corners of the law and not in some arbitrary, whimsical or purely discretionary manner based on their preferences or ideology.
The court referred to a judgement passed by the Supreme Court 60 years ago wherein it was declared that in India, the angels and saints of Michelangelo do not need to be made to wear breeches before they can be viewed.
“Still, in 2024, the Assistant Commissioner of Customs prohibited the import and ordered confiscation (and possibly destruction) of seven drawings by world-renowned artists, viz. Souza and Padamsee on the ground that such artworks, in his opinion, were obscene,” the bench said.
The Assistant Commissioner of Customs has relied entirely on his personal interpretation of obscenity while concluding that the Padamsee and Souza artworks are “obscene” and, therefore, prohibited, the bench noted.
“He (assistant commissioner) has neither bothered to seek any expert’s opinion on the subject nor even looked into the reports, expert opinions and other material submitted by the petitioner to contend otherwise. His reasoning shows an ‘ipse dixit’ approach, wherein he concluded that anything depicting nudity is inherently obscene,” the bench said.
The court noted that the assistant commissioner was “utterly obsessed with his notions of obscenity” and relied solely on his conviction that any artwork depicting nudity or sexual intercourse is inherently obscene.
The petition pointed out that in 2022, Karachiwala had booked three paintings of Padamsee’s work and Souza’s “lovers” for Rs 8.33 lakh at an auction in London and had shipped them to Mumbai while declaring that they contained “nude drawings”.
However, the customs officials at the airport special cargo Commissionerate seized all the seven paintings that were on the consignment. The petition says the Assistant Commissioner of Customs in an arbitrary and capricious manner seized the artworks and imposed a fine of Rs 50,000 on the petitioner’s firm.
The petition, filed by advocates Shreyas Shrivastava and Shraddha Swarup, questioned how the Customs department could consider their artwork as obscene.
“The subject work of art is a national treasure of modern art which needs to be given its due recognition. However, the Customs officials have failed to understand the significance of the art and failed to differentiate between art and obscenity,” the plea said.
The plea sought that the confiscation order be quashed, and the artwork be released.
Both Souza and Padamsee were part of the Progressive Artists’ Group that introduced European modernism to Indian art, and their works are among the most coveted by collectors in India.
