Only recently the Bombay High Court, in B.K. Polimex India (P) Ltd. v. Union of India, overturned the Assistant Commissioner of Customs’ (ACC) confiscation of artworks by renowned artists F.N. Souza and Akbar Padamsee.[1] The ACC deemed the artworks “obscene,” relying solely on his personal interpretation and disregarding expert opinions and legal precedents. The court, in its judgment, emphasized that the determination of obscenity must be grounded in legal principles and contemporary community standards, not individual preferences.
Facts of the Case:
In 2022, B.K. Polimex India Private Limited (the Petitioner) purchased three drawings by Akbar Padamsee and four by F.N. Souza from auction houses in London. These artworks, depicting nudity in some instances, were imported into India and declared as “nude drawings” on the customs invoices. Upon arrival, Customs officials, under the Airport Special Cargo Commissionerate, threatened to confiscate and possibly destroy the artworks!
Fearful of the potential loss of these valuable pieces, the Petitioner, following advice from FedEx, requested the re-exportation of the artworks. Despite this, the Customs officials seized the seven artworks on April 20, 2023, deeming them “obscene material.”
The Petitioner contested this seizure, submitting certificates from art galleries, expert opinions, and even prints from the National Gallery of Modern Art’s virtual tour to demonstrate that the artworks were not obscene. Despite a personal hearing on June 22, 2023, where the Petitioner further argued its case, the ACC issued an order on July 1, 2024, confiscating the artworks and imposing a fine of Rs. 50,000.
Reasoning of the Assistant Commissioner of Customs:
The ACC based his decision on Notification No.1/1964-Customs dated January 18, 1964, which prohibits importing “obscene” materials. He contended that since the artworks portrayed nudity and, in some cases, “sexual intercourse positions,” they inherently fell under the category of “obscene” and were thus prohibited.
The ACC’s reasoning can be summarized as follows:
- Reliance on personal interpretation: He relied solely on his understanding of obscenity, dismissing expert opinions and the context of the artwork.
- Anything depicting nudity is obscene: He adopted a rigid stance, equating any form of nudity with obscenity.
- Disregard for artistic merit and expertise: He failed to consider the acclaim and recognition these artists had received globally and the artworks’ artistic value.
- Ignoring judicial precedents: He disregarded established legal principles on obscenity, attempting to distinguish relevant Supreme Court judgments on flimsy grounds.
Reasoning of the Bombay High Court:
The Bombay High Court, in its judgment delivered by Justices M.S. Sonak and Jitendra Jain, found the ACC’s order perverse, unreasonable, and unsustainable. They quashed the order and directed the immediate release of the artworks to the Petitioner.
The court’s reasoning was grounded in the following:
- Not every nude painting is obscene: The court stated that nudity in art does not automatically equate to obscenity. A nuanced approach considering artistic merit, context, and community standards is necessary.
- Rejection of the ACC’s “ipse dixit” approach: The court criticised the ACC’s reliance solely on his assertion without substantiating it with evidence or considering expert opinions and legal precedents.
- Contemporary community standards: The court emphasized that the determination of obscenity must consider the evolving social norms and values of the present-day community.
- Artistic merit and expertise: The court acknowledged the global recognition of both artists and considered their expertise a relevant factor. The ACC’s disregard for this aspect was deemed a critical flaw in his judgment.
- Importance of legal precedents: The court upheld the principles laid down in various Supreme Court judgments that provided guidelines for determining obscenity. They highlighted that personal opinions cannot supersede established legal principles.
Cases Cited and Their Application:
The Bombay High Court cited several landmark cases to support its decision:
- Ranjit D. Udheshi vs. State of Maharashtra (1964): This case established that mere depiction of sex and nudity in art does not constitute obscenity. The focus should be on whether the material would corrupt those exposed to it.[2]
- Aveek Sarkar and another Vs. State of West Bengal and others (2014): The court in this case rejected the outdated Hicklin test, which judged obscenity based on isolated passages taken out of context. It emphasized the importance of contemporary community standards in determining obscenity.[3]
- Ajay Goswami vs. Union of India and others (2007): This case established that nudity alone does not constitute obscenity. The court must consider the artistic, literary, or social merit of a work alongside its potentially obscene content.[4]
- Indibily Creative Private Limited and others vs. Government of West Bengal and others (2020): The Supreme Court, in this case, underscored the freedom of expression and criticized authorities acting as self-proclaimed guardians of public morality.[5]
- Kavita Phumbhra Vs. Commissioner of Customs (Port), Calcutta: The Calcutta High Court, in this case, overturned the customs authorities’ confiscation of glass objects depicting an unclothed female form. They criticised the imposition of vague individual moral standards and highlighted the evolving nature of societal norms.[6]
Judgment and the Court’s stand on the core issue:
The Bombay High Court, in its judgment, quashed and set aside the impugned order of the ACC, directing the release of the confiscated artworks to the Petitioner. The court emphasized that customs laws do not empower an ACC to impose his personal views on obscenity and dictate artistic standards. They stressed that legal principles and contemporary community standards, as laid down in judicial precedents, must guide such decisions.
The core issue, whether the artworks were “obscene,” was addressed by the court in light of the evolving understanding of the term and the context of artistic expression. The court maintained that “sex and obscenity are not always synonymous” and that merely depicting nudity does not automatically render an artwork obscene. They held that the ACC’s failure to consider expert opinions, artistic merit, and community standards demonstrated a perverse and unreasonable approach.
Conclusion:
The Bombay High Court’s judgment in B.K. Polimex India (P) Ltd. v. Union of India serves as a crucial reminder that individual biases and moral judgments cannot supersede established legal principles and due process. The court’s emphasis on context, artistic merit, expert opinions, and contemporary community standards provides a robust framework for determining obscenity in the realm of art. This judgment protects artistic freedom and ensures that bureaucratic overreach based on personal preferences does not stifle creative expression.
(The author is part of the legal research team of the organisation)
[1] WRIT PETITION NO. 14437 OF 2024
[2] 1965 AIR 881
[3] (2014) 4 SCC 257
[4] (2007) 1 SCC 143
[5] AIR 2019 SC 1918
[6] GA No. 2284 of 2009
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