Every nude painting not obscene: Bombay High Court admonishes customs for confiscating 7 artworks

The Bombay High Court recently ordered the release of seven paintings by renowned Indian artists Francis Newton Souza and Akbar Padamsee, while admonishing the customs officials for confiscating such artwork on the ground that they were 'obscene.' [B K Polimex India Private Limited v. Union of India and Ors].A Bench of Justices MS Sonak and Jitendra Jain emphasized that customs officials cannot arbitrarily claim to represent community standards for determining what is obscene without proper justification. .The Court proceeded to quash a July 1 order of the Assistant Commissioner of Customs, Airport Special Cargo Commissionerate, by which the paintings were confiscated."Every nude painting or every painting depicting some sexual intercourse cannot be styled as obscene ... 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 Court added. .Customs laws of India do not insist that Michelangelo’s David be fully clothed before he passes through our Customs Borders.Bombay High Court.The dispute began in 2022 when a company named BK Polimex India Private Limited (petitioner) purchased three drawings by Akbar Padamsee and four by FN Souza at auctions in London. On March 24, 2023, the company shipped the artworks using FedEx, clearly labeling the shipment as "nude drawings" to comply with customs regulations. Upon arrival in India on March 27, 2023, customs officials scrutinized the shipment. The petitioner alleged that customs officials threatened both confiscation and destruction of the valuable artworks. This prompted the company to seek permission for re-export on April 17, believing this would prevent the items from being classified as obscene. However, on April 20, customs issued a seizure memo, declaring the seven artworks as "obscene material.".Challenging the seizure, the petitioner argued that the artworks were not obscene and provided certificates from art galleries, along with expert opinions to support their case. When there was no response from customs by June 7, 2023, a personal hearing was requested and held on June 22, where additional appeals were presented. On October 19, customs issued a notice asking the petitioner to explain why the artworks should not be confiscated and destroyed. The petitioner filed a detailed reply, citing legal precedents against the classification of obscenity. This culminated in a ruling on July 1, 2024, where the Assistant Commissioner of Customs confirmed the confiscation and imposed a fine of ₹50,000. This was subsequently challenged before the High Court..The customs counsel defended the confiscation order by relying on a January 1964 notification under the Customs Act, which grants the government the power to prohibit imports for the maintenance of public order and standards of decency or morality.The High Court, however, criticized the customs officials for relying on personal interpretations of obscenity and neglecting expert opinions and relevant legal standards."The impugned order is based mainly on irrelevant considerations like the ACC’s individualised standards of morality and decency, his personal opinions and prejudices on the topic of obscenity, the fact that the Petitioner had declared that the goods were 'nude paintings,' and some of the artworks depicted sexual intercourse poses," the Court pointed out. The Court highlighted that the customs official's personal moral views and preferences in such matters should take a back seat when he exercises public powers as a customs official. "He cannot allow his personal opinions, however strong, to cloud his judgment," the Court said. .The Court found that the customs officer’s reasoning, in this case, reflected an overly simplistic approach, by which the official had concluded that any depiction of nudity is inherently obscene. This perspective failed to recognize the artistic merit of the works and ignored previous customs determinations that had classified similar artworks by Padamsee and Souza as art and not obscene, the Court pointed out. .The Bench added that "sex and obscenity are not always synonymous," emphasizing that the customs officer’s reliance on a dictionary definition to categorize the artworks as obscene was inappropriate. The Court highlighted that Indian law does not clearly define "obscene," and opined that the officer's conclusions were perverse and unreasonable.The Court also acknowledged the prestigious accolades received by both artists, such as Padamsee's Padma Bhushan and Souza's Guggenheim International Award. These honors reflect their significant contributions to the art world and should not be overlooked, the Court said. Ultimately, the Bombay High Court quashed the customs order and directed the immediate release of the confiscated artworks within two weeks..Advocate Shreyas Shrivastava, along with Advocates Saurabh Shrivastava and Shraddha Swarup appeared for BK Polimex India Private Limited.Advocate Jitendra B Mishra along with Advocates Abhishek Mishra and Rupesh Dubey appeared for the respondents (Central government and customs officials)..[Read Order]