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

Related:

Bombay HC: Rapping customs department for dubbing F N Souza and Akbar Padamsee’s nudes ‘obscene’, orders release of artworks

The post Art v/s Obscenity: Bombay High Court overturns seizure of Padamsee & Souza artworks appeared first on SabrangIndia.

Through this order, the HC quashed and set aside the department’s July 1, 2024, order passed by the Assistant Commissioner of Customs (ACC) that confiscated the artworks by, labelling them under the ‘obscene material’ category and prohibited them for import. On October 21, a bench of Justices Mahesh S Sonak and Jitendra S Jain, while hearing a plea by BK Polimex India Pvt Ltd, a company owned by Mumbai-based businessman and art collector Mustafa Karachiwala, had restrained authorities from destroying the confiscated artworks that were seized in 2023.

This consignment had included seven artworks, including a folio of four erotic drawings by Souza, with one of them titled ‘Lovers’.The batch also included three other pieces by Padamsee, one drawing titled ‘Nude’ and two photographs. In 2022, three nude artworks of Padamsee and four of Souza were purchased at auction houses Roseberys in London, and Lyon & Turnbull in Scotland.

The petitioner firm, through advocates Shreyas Shrivastava, Saurabh Shrivastava and Shraddha Swarup, termed the seizing of artworks and imposing Rs. 50,000 fine ‘arbitrary and illegal’.
“We are satisfied that the ACC’s order suffers from perversity and unreasonableness…The ACC, utterly obsessed with his notions of obscenity, has confiscated and possibly directed the destruction of the artworks of Padamsee and Souza. The ACC relies solely on his conviction that any artwork depicting nudity or sexual intercourse is inherently obscene,” the bench noted.
It added that the ACC “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 (William J Brennan, Jr.). Such an order, in our opinion, is unsustainable and must go,” said the bench.

The order also mentioned that, “the ACC’s personal conviction that any nude portrayal of a woman or any drawings portraying sexual poses is invariably obscene could not or should not have been the fulcrum of his decision.”

Further observing that while the matter cannot be solely decided based on eminence of two artists, the bench said it could not have also not been decided by ACC repeatedly focusing on the fact that artworks were nude and in some cases portrayed sexual intercourse positions and hence they were obscene. “Every nude painting or every painting depicting some sexual intercourse poses cannot be styled as obscene,” the HC observed. The HC added that the petitioner has correctly pointed out that “nude sculptures and art are prevalent in several Indian temples and celebrated for their artistic excellence.”

The bench referred to a Supreme Court judgement of 60 years ago which 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 ACC prohibited import and ordered confiscation of seven drawings by world-renowned artists on the basis of obscenity, it said.

Justice Sonak, who authored the verdict further remarked, “The customs laws of India do not insist that Michelangelo’s David be fully clothed before he passes through our Customs Borders.”

The judge added, “The 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 assistant commissioner of customs does not make the law on this subject.”

The bench also remarked that several great artists have had to tread an “unfortunate path hedged by those dressed in little brief or even grand or pompous authority” Allowing the plea, the bench held that it was a case of “completely ignoring vital and relevant material and basing the decision on personal preferences and prejudices, which should have no place in decision making by a public authority.”

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How ascetics and yogis were depicted in Indian paintings from the Mughal era

The post Bombay HC: Rapping customs department for dubbing F N Souza and Akbar Padamsee’s nudes ‘obscene’, orders release of artworks appeared first on SabrangIndia.