Bombay High Court Quashes Customs Order Banning Souza and Padamsee Art as Obscene

Mumbai: In a significant ruling upholding artistic freedom and clarifying the standards for determining obscenity, the Bombay High Court has quashed an order by an Assistant Commissioner of Customs who had prohibited the import and ordered the confiscation of seven drawings by renowned artists F N Souza and Akbar Padamsee , deeming them "obscene" based on his personal opinion.

A bench of the Bombay High Court presided over by Justice M.S. Sonak emphasized that public officials cannot act as self-appointed custodians of public morality based on personal preferences, particularly when dealing with works by world-renowned artists supported by expert opinions and legal precedents.

Case Background:

The Petitioner had purchased three drawings by Akbar Padamsee and four by F N Souza from London auctioneers in 2022 and imported them to India in March 2023. The invoices specifically declared the consignment as "nude drawings". Upon arrival, Customs officials seized the artworks. Initially, under pressure and alleged misrepresentation from FedEx officials, the Petitioner sought to re-export the artworks. However, the Customs authorities seized the art on April 20, 2023.

The Petitioner then wrote to the Deputy Commissioner of Customs, providing certificates from art galleries and opinions from experts asserting that the artworks were not obscene but works of artistic merit. Despite presenting extensive material, including examples of similar artworks displayed in national galleries and referencing judicial precedents on obscenity, the Assistant Commissioner of Customs (ACC) issued a show cause notice in October 2023 and a final order on July 1, 2024. The order confiscated the artworks, imposed a penalty of Rs. 50,000, and possibly included a directive for destruction, although the destruction aspect remained unclear in the final order.

The ACC's decision relied on Notification No.1/1964-Customs, which prohibits the import of obscene drawings, paintings, or representations. However, the ACC's reasoning was based solely on his personal interpretation, stating that since the drawings depicted nudity and some sexual poses, they were inherently obscene, regardless of the artists' eminence or expert opinions.

Arguments Presented:

• Petitioner: Argued that the artworks were not "obscene" according to established legal standards and were works of artistic and national importance. Counsel contended that the ACC ignored expert opinions, certificates, precedents from the Supreme Court and High Courts, and the fact that similar art is displayed in prestigious galleries. The decision, it was argued, was based on the ACC's subjective and arbitrary views, amounting to an ' Ipse Dixit ' approach, rendering the order perverse.
• Respondents: Submitted that the Petitioner had an alternate remedy and should have pursued appeals. They also argued that the Petitioner had implicitly accepted the artworks were obscene by initially seeking re-export. The counsel contended that the artworks were indeed obscene, asking rhetorically what else could be considered obscene if not these drawings.

Court's Analysis and Legal Precedents:

The High Court strongly criticized the ACC's order, finding it suffered from "perversity and unreasonableness" for ignoring relevant material and settled law.

The Court referenced the 1964 Supreme Court judgment in Ranjit D Udheshi Vs State of Maharashtra , where it was famously stated that "the angels and saints of Michael Angelo do not need to be made to wear breeches before they can be viewed." The Supreme Court in Udheshi had adopted the English Hicklin test (tendency to deprave and corrupt) but also noted that standards of obscenity change with time and that treating sex and nudity in art cannot be automatically regarded as evidence of obscenity.

Crucially, the High Court relied on the Supreme Court's 2014 decision in Aveek Sarkar and another Vs. State of West Bengal and others , which expressly rejected the Hicklin test for determining obscenity under Section 292 of the Indian Penal Code. The Aveek Sarkar judgment established that obscenity must be judged from the point of view of an average person applying contemporary community standards , and that a picture of a nude/semi-nude woman is not per se obscene unless it tends to excite prurient interest and is suggestive of a depraved mind designed to excite sexual passion.

The Court also cited other significant judgments: * Raj Kapoor vs State (SC, 1980), which cautioned against statutory/court-defined morals impacting fundamental freedoms. * Maqbool Fida Husain Vs. Rajkumar Pandey (Delhi HC, 2008), which discussed the long history of eroticism and nudity in Indian art, noting that art is a vehicle for expression and can be dangerous to ignorant innocents, but where it is chaste, it is not art. * Kavita Phumbhra Vs. Commissioner of Customs (Port), Calcutta (Cal HC, 2011), which set aside a Customs order confiscating nude glass objects, stating customs authorities cannot enforce morality by vague, individualized standards and must consider changing modern concepts and community standards. * Ajay Goswami vs Union of India , which held that nudity alone is not enough for material to be legally obscene and that artistic/social merit must be considered. * Indibily Creative Private Limited vs Government of West Bengal (SC, 2020), which criticized public authorities acting as "self-appointed guardians of public morality" and interfering with artistic expression.

The High Court drew parallels to a recent case involving Customs confiscating "Wave Body Massagers" deemed obscene, where both CESTAT and a coordinate bench of the Bombay High Court had criticized the Customs' reliance on personal views rather than legal standards.

The bench underscored that the ACC's decision was based "solely on his personal conviction that any artwork depicting nudity or sexual intercourse is inherently obscene," ignoring prominent artists' accolades, expert opinions, display in public galleries, and legal precedents.

"Public officials must act within the law, not based on personal ideology," the Court stated, warning against a degeneration from the rule of law to the rule of men if authorities substitute 'ipse dixit' for legal standards.

Addressing the respondents' arguments, the Court dismissed the objection regarding alternate remedy, stating that this was a gross case of usurpation of jurisdiction based on perversity. It also noted the risk of destruction of the artworks. The argument that the Petitioner applied for re-export was found unappealing, viewed as an act of desperation when faced with threats of confiscation and destruction.

Decision:

The Bombay High Court allowed the Petition, quashed, and set aside the impugned order dated July 1, 2024. The Court directed the Assistant Commissioner of Customs (Respondent No. 3) to immediately release the confiscated artworks to the Petitioner within two weeks.

The judgment strongly reaffirms that the assessment of obscenity in art must align with evolving legal standards, contemporary community standards, and expert opinions, and cannot be left to the arbitrary personal views of individual public officials.