Every Nude Painting Or Depiction Of Sexual Intercourse Poses Is Not Obscenity: Bombay High Court Slams Customs For Confiscating Paintings

The Bombay High Court recently while ordering the release of the paintings of renowned artists Francis Newton Souza and Akbar Padamsee, held that every nude painting or painting depicting some sexual intercourses poses cannot be styled as obscene.

A division bench of Justices Mahesh Sonak and Jitendra Jain noted that the decision of the Assistant Customs Commissioner (ACC) in Mumbai, was 'obsessed with his notions of obscenity' and thus he confiscated and directed the destruction of the artworks by Souza and Padamsee.

"The ACC relies solely on his conviction that any artwork depicting nudity or sexual intercourse is inherently obscene. He 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," the judges said in the order passed on October 25.

While it is true that this matter cannot be decided based only on the eminence of the two artists, so also, the matter could not have been decided by the ACC by repeatedly focusing on the fact that the artworks were of nudes and, in some cases, portrayed sexual intercourse positions and were, therefore, necessarily obscene.

"Every nude painting or every painting depicting some sexual intercourse poses cannot be styled as obscene," the bench held, further stating that the Petitioner correctly pointed out that nude sculptures and art are prevalent in several Indian temples and celebrated for their artistic excellence.

"The petitioner referred to sculptures and artworks in several significant galleries exhibiting matchless art in the form of nudes or sexual positions," the bench noted.

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 July 2024 order of confiscation of the art works by the two artists.

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.

The Petitioner pointed out that Souza's paintings are displayed at the Lalit Kala Academy of Indian Government and the National Gallery of Modern Art, India. Several certificates and experts' opinions of various art galleries in London and India certifying that such paintings were not obscene were produced by the Petitioner for the consideration of the ACC. But the ACC, the judges noted, so enamoured by his convictions, has refused to even look into this voluminous material placed before him.

"If the ACC were to express such views in a newspaper column or on social media (subject to the service rules that govern his service) and if some public authorities were to ban or censor such views, perhaps the judiciary and the Courts would rise in the ACC's defence and protect his freedom of speech and expression. The Constitutional Courts in this Country go by Voltaire's dictum that they may not agree with anything you say but shall defend unto death your right to say it (as long as what you say is within the constitutional bounds of free speech)," the bench observed.

However, when the ACC purports to exercise public powers as a Customs official, such personal opinions or preferences must necessarily take a back seat. He cannot allow his personal opinions, however strong, to cloud his judgment, the bench said.

"The interpretation of the notification or obscenity must align with the legal precedents established by the Supreme Court and the High Courts, regardless of the ACC's personal opinions. Public officials must act within the law, not based on personal ideology," the bench underlined.

The impugned order, the bench said, ignored most relevant considerations like expert opinions, appeals from experts, artistic value, contemporary community standards, and several legal precedents on the subject.

"This is a classic case where the ACC, obsessed by his convictions on obscenity in art, has usurped jurisdiction he did not have. The Customs laws of India do not insist that Michelangelo's David be fully clothed before he passes through our Customs Borders. An assistant commissioner of customs 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 held, while quashing the impugned order.

Appearance:

Advocates Shreyas Shrivastava, Saurabh Shrivastava and Shraddha Swarup appeared for the Petitioner.

Advocates Jitendra B Mishra, Abhishek Mishra and Rupesh Dubey represented the Respondents.

Case Title: M/s BK Polimex India Private Limited vs Union of India (Writ Petiton14437 of 2024)

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