The Bombay High Court has ordered the customs department to release seven paintings by artists Francis Newton Souza and Akbar Padamsee that had been confiscated on the grounds of being “obscene”.
A bench of Justices MS Sonak and Jitendra Jain on October 25 said that customs officials cannot arbitrarily “assume the mantle of being a spokesperson for community standards” to determine what is obscene without proper justification.
“Every nude painting or every painting depicting some sexual intercourse cannot be styled as obscene,” it said while quashing an order issued by the Assistant Commissioner of Customs under the Airport Special Cargo Commissionerate on July 1 confiscating the paintings.
In 2022, a company called BK Polimex India Private Limited bought three paintings by Padamsee and four by Souza at auctions in the United Kingdom, Bar and Bench reported.
On March 24, 2023, BK Polimex shipped the seven artworks to India using an international courier service and labelled the shipment as “nude drawings” in compliance with customs regulations.
However, customs officials threatened to confiscate and destroy the artworks after they arrived in India, the company claimed, according to Bar and Bench.
On April 17 this year, BK Polimex sought permission to re-export the paintings to prevent them from being labelled as obscene. Three days later, the Customs Department issued a seizure memo, which declared the seven paintings as “obscene material”.
In response, the company provided expert opinions and certificates from art galleries to challenge the memo and prove that the artworks were not obscene. Subsequently, BK Polimex requested a personal hearing after no response was given from the department. This was held on June 22.
On October 19, the Customs Department issued a notice seeking an explanation from the company as to why the paintings should not be confiscated and destroyed.
In reply, BK Polimex cited legal precedents against the classification of obscenity. However, the Assistant Commissioner of Customs on July 1 issued an order confiscating the paintings and imposed a fine of Rs 50,000, according to Bar and Bench.
Following this, the company challenged the confiscation in the court.
During the proceedings in the court, the Customs department cited a notification from January 1964 under the Customs Act, which granted the Union government the power to prohibit imports for the maintenance of public order and standards of decency or morality, Bar and Bench reported.
In its order on October 25, the bench said that the July 1 order was based on “irrelevant considerations”, including the Assistant Commissioner of Customs’ personal opinions on obscenity.
It was also based on the “fact that the petitioner had declared that the goods were ‘nude paintings’, and some of the artworks depicted sexual intercourse poses,” it noted. “He [assistant commissioner] cannot allow his personal opinions, however strong, to cloud his judgment,” the court said.
“The Customs laws of India do not insist that Michelangelo’s David be fully clothed before he passes through our Customs Borders,” the order said. “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 assistant commissioner’s reasoning that any depiction of nudity was inherently obscene failed to recognise the artistic merit of the works, the court said. “Sex and obscenity are not always synonymous,” the bench added.
The court said that the customs department’s reasoning suffered “from perversity and unreasonableness” and quashed the July 1 order. It also directed the officials to release the confiscated artworks within two weeks.
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