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TMI Blog2024 (10) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... kbar Padamsee on the ground that such artworks, in his opinion, were obscene. 2. Accordingly, we issue Rule. The rule is made returnable immediately at the request and with the consent of the learned counsel for the parties. 3. The Petitioner challenges the order dated 01 July 2024 issued by the Assistant Commissioner of Customs (Respondent No.3) confiscating the drawings by world-renowned artists, viz. Mr. F N Souza and Mr. Akbar Padamsee on the ground that such artworks were "obscene". Apart from confiscating the artworks, the impugned order dated 01 July 2024 also imposes a fine of Rs. 50,000/- on the Importer/Petitioner. There is no clarity on whether the impugned order directs the "destruction" of these artworks because at least the show cause notice issued to the Petitioner had referred to the destruction of these artworks. 4. In 2022, the Petitioner purchased three drawings by Mr. Akbar Padamsee at an auction by Rosebery's London and four by Mr Francis Newton Souza from the auctioneers Lyon and Turnbull London. The payments were made to the auctioneers through usual banking channels. 5. On 24 March 2023, the Petitioner booked M/s. Stephen Morris Shipping PLC, Greenford C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ober 2023, the 3rd Respondent issued the Petitioner a show cause notice requiring the Petitioner to show cause why the artworks should not be confiscated and destroyed and why a penalty should not be imposed. In November 2023, the Petitioner filed a reply followed by written submissions. The Petitioner gave instances of how, in the past, the artworks of world-renowned artists were similarly blocked without taking cognisance of the correct legal position in such matters. 11. On 01 July 2024, the 3rd Respondent made the impugned order confiscating the artworks and imposing a penalty of Rs. 50,000/-. It is unclear whether the impugned order directs the "destruction" of these artworks because at least the show cause notice issued to the Petitioner referred to the destruction of these artworks. Hence the present Petition. 12. Mr. Shrivastava, the learned counsel for the Petitioner, submitted that the Petitioner's case is not covered by the Notification dated 18 January 1964 since every nude drawing or painting cannot be styled as obscene. He submitted that the artworks in question are national and international treasures certified by experts in the art world. Even the artists are worl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs conferred by Section 11 of the Customs Act, the Central Government, being satisfied that it is necessary in the public interest so to do, for the purposes specified in subsection 2 of that Section, has prohibited the import of inter-alia the following goods, namely: - (1) ..... (2) any obscene book, pamphlet, paper, drawing, painting, representation, figure or article; (3) ..... (4) ..... (5) ....." 20. In concluding that the Padamsee and Souza artworks are "obscene" and, therefore, prohibited under the Notification dated 18 January 1964, the ACC has relied entirely on his personal interpretation of obscenity. He has neither bothered to seek any experts' opinion on the subject nor even looked into the reports, expert opinions and other material submitted by the Petitioner to contend otherwise. The ACC's reasoning shows an "Ipse Dixit" approach, wherein he concluded that anything depicting nudity is inherently obscene. 21. In paragraph 11 of the impugned order, the ACC noted that "the subject Drawings are nude as already declared in the used invoices and accepted by the Importer in their written reply." Further, the ACC has noted the submission that the Customs had, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2 (33) of the Customs Act, 1962, read with Notification 1/1964-Customs dated 18 January 1964 (Sr. No.2), held that "the subject imported drawings fall under the category of "Prohibited Goods" as the said drawings are completely nude with some sexual intercourse position". 28. Thus, in short, the ACC has made the impugned order only because, in his opinion, drawings that portray nudes or drawings that refer to some sexual intercourse positions are "obscene" in all circumstances. The eminence of the artists, their expertise in the field or the fact that several other experts have acknowledged and even feted such expertise were considered irrelevant considerations. The ACC virtually brushed aside the opinions expressed by the Hon'ble Supreme Court or the various other High Courts on the issue of obscenity and stuck to his position that anything "completely nude" constitutes "complete obscenity". 29. After reviewing the ACC's impugned order dated 01 July 2024 in the context of Notification No. 1/1964-Customs dated 18 January 1964, we are satisfied that the same suffers from perversity and unreasonableness. Relevant material, including settled law on the subject, has been completely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of the ACC. But the ACC, so enamoured by his convictions, has refused to even look into this voluminous material placed before him. 33. Akbar Padamsee has been conferred the following awards: - * Lalit Kala Academy Fellowship, 1962 * J.D. Rockefeller III Fund Fellowship, 1965 * Artist in Residence. Stout Residence University, Wisconsin, 1967 * Jawaharlal Nehru Fellowship, 1969 * Kalidas Samman, Madhya Pradesh Government, 1997-1998 * Lalit Kala Ratna, Lalit Kala Academy, New Delhi, 2004 * Padma Bhushan, Government of India, 2010. 34. Similarly, FN Souza has been conferred the following awards: - * John Moore Prize, Liverpool, 1957 * Italian Government Scholarship, 1960 * Guggenheim International Award, New York, 1967. 35. While these accolades do not exempt an artist from scrutiny, the ACC should not have entirely ignored the artistic merit and the worldwide recognition these artists have garnered. The ACC's personal conviction that any nude portrayal of a woman or any drawings portraying sexual poses is invariably obscene could not or should not have been the fulcrum of his decision. This is a case of completely ignoring vital and relevant material and basi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority, without any supporting evidence or proof (LII/Legal Information Institute. https: www.law.cornell.edu>Wex). Public officials must act within the law, not based on personal ideology. 40. Suppose public authorities vested with powers to decide on vital aspects prefer ipse dixit over the law and legal precedents. In that case, we stand to degenerate from a system sworn to the rule of law to the rule of men. The rule of law demands that public functionaries 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. Aristotle extolled a government according to institutionalised impersonal rules and condemned a government by personal fiat. That is the difference between the rule of law and the rule of men. In a democratic set-up like ours, we pride ourselves on being governed by the rule of law and not the rule of men. Every public functionary must be conscious of this source of pride and do nothing to wound this hallowed principle. 41. Several great artists, it appears, have had to tread such an unfortunate path hedged by those dressed in little brief or even grand and po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kward mind as reflected in the Delhi customs [as reported in https:// www.livemintg.com/Leisure/dZyMulvnr9fPEEJhsdgqpK/E xcerpt-A-Scrapbook-Of-Memories.html]" 43. The legal position on obscenity requires a reference to Section 292 of the Indian Penal Code, which provides that whoever, among other things, sells or even has in his possession any obscene book, pamphlet, paper, writing, drawing, painting, representation or figure or any other obscene object whatsoever or imports, exports or conveys any obscene object for any of the purposes aforesaid shall be committing an offence punishable under Section 292 of the Indian Penal Code. 44. In Ranjit Udheshi (supra), the Hon'ble Supreme Court accepted the test for determining obscenity propounded by Cockburn, C.J. in the Regina Vs Hicklin (1868) LR 3 QB 360. This test requires the decision maker to assess the tendency of the matter charged as obscenity to deprave and corrupt those whose minds are open to such immoral influences and into those whose hands a publication of this sort may fall. The Court noted that the Indian Penal Code does not define the word "obscene", and this delicate task of how to distinguish between that which is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kalyandas Kakodkar Vs. State of Maharashtra 1969 (2) SCC 687, the Supreme Court reiterated the principle by stating that the standards of contemporary society in India are also fast changing. This principle was reaffirmed in Samaresh Bose and another vs Amal Mitra and another (1985) 4 SCC 289 and in S. Khushboo Vs. Kanniammal & Anr (2010) 5 SCC 600. 48. In Aveek Sarkar and another Vs. State of West Bengal and others (2014) 4 SCC 257, the Court was concerned with a criminal prosecution under Section 292 against some Indian magazines that had reproduced a German magazine photograph. This was a photograph of Boris Becker, a world-renowned tennis player, posing nude with his dark-skinned fiancée by name Barbara Feltus, a film actress, but Boris Becker covering his fiancée's breast with his hands. The article and the photograph ran with the caption "Posing nude dropping out of tournaments, battling Racism in Germany. Boris Becker explains his recent approach to life" - Boris Becker Unmasked. 49. The Supreme Court empathetically held that the Hicklin test, propounded in 1868 in England and adopted in 1964 in India, could no longer be a correct test to be applied to determ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants to face the trial. The Supreme Court also held that the High Court should have exercised powers under Section 482 of CrPC to secure the ends of justice. 52. In Raj Kapoor vs State12, the Supreme Court quashed the criminal proceedings initiated against Raj Kapoor for alleged obscenity in his film "Satyam Shivam Sundaram". Krishna Iyer, J., observed that morals made to measure by statute and court are risky with a portentous impact on fundamental freedoms. In our constitutional order, the root principle is the liberty of expression and its reasonable control with the limits of "public order, decency or morality". Here, social dynamics guide legal dynamics in the province of "policing" art forms. The relation between reality and relativity must haunt the Court's evaluation of obscenity, expressed in society's pervasive humanity, not the law's penal prescriptions. 53. The Court noted that social scientists and spiritual scientists would broadly agree that man lives not alone by mystic squints, ascetic chants and austere abnegation but by luscious love of beauty, the sensuous joy of companionship and moderate non-denial of normal demands of the flesh. Extremes and excesses boo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f bliss that can be experienced only by the spirit. 3. Today Indian art is confidently coming of age. Every form of stylistic expression in the visual arts, from naturalism to abstract expressionism derives its power from the artist's emotional connection to his perceptual reality. The Nude is contemporary art, a perennial art subject, considered to be the greatest challenges in art has still not lost its charm and focuses on how the human form has been re-interpreted by the emerging and influential artists today. The paintbrush has become a powerful tool of expression as the pen is for some, and has thus occasionally come under the line of fire for having crossed the 'Lakshman Rekha and for plunging into the forbidden, which is called 'obscene', 'vulgar', 'depraving', 'prurient' and 'immoral. No doubt this form of art is a reflection of a very alluring concept of beauty and there is certainly something more to it than pearly 'flesh' but what needs to be determined is which art falls under the latter category. 55. In Kavita Phumbhra Vs. Commissioner of Customs (Port), Calcutta 2011 SCC OnLine Cal 2378, the Division Bench of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate Limited and others vs Government of West Bengal and others (2020) 12 SCC 436, the Hon'ble Supreme Court criticised the approach of public authorities, including the police, in refusing to assist in filming a movie in West Bengal. The police, despite certification from CBFC, did not allow the film to be exhibited. The Court observed that the police are the self-appointed guardians of public morality, not in a free society. The uniformed authority of their force is subject to the rule of law. They cannot arrogate the authority to be willing allies in suppressing dissent and obstruction of speech and expression. The Court held that the danger the case exemplifies is the peril of subjecting citizens' freedom of speech and expression to actions not contemplated by the statute and lie beyond the lawful exercise of public power. The Court held that if the right of the playwright, artist, musician or actor were subjected to popular notions of what is or is not acceptable, the right itself and its guarantee under the Constitution would be rendered illusory. 59. The Court held that the true purpose of art, as manifest in its myriad forms, is to question and provoke. In an elemental ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide on obscenity issues was evident about two years ago when the Customs Authorities confiscated and ordered the destruction of Wave Body Massagers by invoking the same Notification No. 1/1964-Customs dated 18 January 1964. The concerned Commissioner reasoned that this Wave Body Massager was "an obscene object because it had the potential to be used as an adult sex toy". The CESTAT, by its detailed judgment and order dated 11 May 2023 penned by C J Mathew, roundly criticised the Customs Authorities for such a perverse approach. This decision discusses admirably the legal position about obscenity and the power of the Customs Commissioners to determine the same. 63. Undeterred, the Customs Department challenged the CESTAT's judgment and order dated 11 May 2023 in Customs Appeal (L) No. 582 of 2024 and connected matters. By judgment and order dated 20 March 2024, the Co-ordinate Bench of this Court approved the CESTAT's stinging criticism of the Customs Commissioner's approach. This Court held that if what was observed by the Commissioner in the order in original is accepted to be the only test for determining obscenity, then it would amount to accepting the officer's personal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quire the Petitioner to avail of the alternate remedy would not be appropriate. 66. 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. 67. The alternate remedy in the facts of this gross case would not amount to an efficacious remedy for yet another reason. The SCN issued by the ACC, in this case, had required the Petitioner to show cause as to why the works of art by Akbar Padamsee and F N Souza should not be destroyed upon confiscation. Although, the impugned order is unclear on the destruction of these works of art. Still, considering the severe observations made by the ACC, we are not sure whether the ACC might destroy these works of art if the Petitioner were to be relegated to resort to the alternate remedy of departmental appeals, etc. In such circumstances, requiring the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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