Bombay High Court orders Customs Dept. to release artworks of Francis Newton Souza and Akbar Padamsee in next two weeks  

The High Court pulled up the Customs Department of Mumbai and said that every nude painting or every painting depicting some sexual intercourse poses cannot be styled as obscene

The Bombay High Court on Friday (October 25, 2024) directed the Customs department to release the confiscated artworks by renowned artists Francis Newton Souza and Akbar Padamsee within two weeks. The artworks were seized in 2023 over allegations of obscenity.   

A Division Bench of Justices M.S. Sonak and Jitendra Jain quashed and set aside the July 1, 2024 order passed by the Assistant Commissioner, Commissionerate of Mumbai Customs, confiscating the artwork. It said the order suffered from “perversity and unreasonableness”. “The Assistant Commissioner Customs has 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. Such an order, in our opinion, is unsustainable and must go.” 

On Friday, the Bench allowed a petition filed by B.K. Polimex India Pvt Ltd., a company owned by Mumbai-based businessman and art collector Mustafa Karachiwala and ordered that the seized artwork be “released immediately and not later than two weeks” to the petitioner.  

“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. Every nude painting or every painting depicting some sexual intercourse poses cannot be styled as obscene. While not everyone is obliged to approve of, like or enjoy such artworks, the option of banning, censoring, prohibiting the import or even destroying such artworks feted by world expertise based entirely on personal opinions, likes and dislikes of a public official is simply unacceptable,” the Bench observed. 

Public officials are demanded by rule of law to exercise their powers within the four corners of the law and not in some arbitrary, whimsical or purely discretionary manner based on their preferences or ideology, the High Court said in the order.   

Referring to a Supreme Court judgement, the Bench said, “In a judgement passed by the Supreme Court sixty years ago, it was 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 Assistant Commissioner of Customs prohibited the import and ordered confiscation and possibly destruction of seven drawings by world-renowned artists, viz. Mr. F.N. Souza and Mr. Akbar Padamsee on the ground that such artworks, in his opinion, were obscene. The Assistant Commissioner of Customs has relied entirely on his personal interpretation of obscenity and concluded the artworks obscene.”  

The Bench further pulled up the Customs department and said, “The Assistant Commissioner has neither bothered to seek any expert’s opinion on the subject nor even looked into the reports, expert opinions and other material submitted by the petitioner to contend otherwise. His reasoning shows an Ipse Dixit approach, wherein he concluded that anything depicting nudity is inherently obscene,” the court said. 

On October 21, 2024, the High Court had passed a restraining order on the Customs department preventing it from destroying artworks by the noted artists. The Bench gave an interim direction while reserving its final judgment.  

The petition challenged the legality of the July 1, 2024 order by the Customs department that confiscated seven artworks, listing them under the category of “obscene material”. The petition said the Assistant Commissioner of Customs in an arbitrary and capricious manner seized the artworks and imposed a fine of ₹50,000 on the petitioner’s firm.    

Advocates Shreyas Shrivastava and Shraddha Swarup, representing the petitioner, argued that the seizure was arbitrary, illegal, and in violation of the constitutional rights protecting artistic expression.  

In April 2023, the Mumbai Customs department had seized a consignment of seven artworks, which included a folio of four erotic drawings by Mr. Souza. One of them was titled ‘Lovers’. The other three pieces were by Mr. Padamsee - a drawing titled ‘Nude’ as well as two photographs. Mr. Karachiwala’s firm acquired the artworks at two separate auctions in London. The Commissionerate of Customs had seized the consignment when it was brought to Mumbai.

Published - October 25, 2024 10:04 pm IST