An artwork handler holds ‘Untitled (Liturgical Objects’ by Francis Newton Souza. File
The Bombay Excessive Court docket on Friday (October 25, 2024) directed the Customs division to launch the confiscated artworks by famend artists Francis Newton Souza and Akbar Padamsee inside two weeks. The artworks have been seized in 2023 over allegations of obscenity.
A Division Bench of Justices M.S. Sonak and Jitendra Jain quashed and put aside the July 1, 2024 order handed by the Assistant Commissioner, Commissionerate of Mumbai Customs, confiscating the art work. It stated the order suffered from “perversity and unreasonableness”. “The Assistant Commissioner Customs has failed to understand that intercourse and obscenity usually are not all the time synonymous. Obscene materials is that which offers with intercourse in a fashion interesting to prurient curiosity. Such an order, in our opinion, is unsustainable and should go.”
On Friday, the Bench allowed a petition filed by B.Okay. Polimex India Pvt Ltd., an organization owned by Mumbai-based businessman and artwork collector Mustafa Karachiwala and ordered that the seized art work be “launched instantly and never later than two weeks” to the petitioner.
“The Assistant Commissioner had solely centered on the truth that the artworks have been nudes and, in some instances, portrayed sexual activity and, therefore, have been obscene. Each nude portray or each portray depicting some sexual activity poses can’t be styled as obscene. Whereas not everyone seems to be obliged to approve of, like or take pleasure in such artworks, the choice of banning, censoring, prohibiting the import and even destroying such artworks feted by world experience based mostly solely on private opinions, likes and dislikes of a public official is just unacceptable,” the Bench noticed.
Public officers are demanded by rule of legislation to train their powers inside the 4 corners of the legislation and never in some arbitrary, whimsical or purely discretionary method based mostly on their preferences or ideology, the Excessive Court docket stated within the order.
Referring to a Supreme Court docket judgement, the Bench stated, “In a judgement handed by the Supreme Court docket sixty years in the past, it was declared that in India, the angels and saints of Michelangelo don’t should be made to put on breeches earlier than they are often considered. Nonetheless, in 2024, the Assistant Commissioner of Customs prohibited the import and ordered confiscation and probably destruction of seven drawings by world-renowned artists, viz. Mr. F.N. Souza and Mr. Akbar Padamsee on the bottom that such artworks, in his opinion, have been obscene. The Assistant Commissioner of Customs has relied solely on his private interpretation of obscenity and concluded the artworks obscene.”
The Bench additional pulled up the Customs division and stated, “The Assistant Commissioner has neither bothered to hunt any professional’s opinion on the topic nor even seemed into the studies, professional opinions and different materials submitted by the petitioner to contend in any other case. His reasoning reveals an Ipse Dixit strategy, whereby he concluded that something depicting nudity is inherently obscene,” the courtroom stated.
On October 21, 2024, the Excessive Court docket had handed a restraining order on the Customs division stopping it from destroying artworks by the famous artists. The Bench gave an interim route whereas reserving its ultimate judgment.
The petition challenged the legality of the July 1, 2024 order by the Customs division that confiscated seven artworks, itemizing them beneath the class of “obscene materials”. The petition stated the Assistant Commissioner of Customs in an arbitrary and capricious method seized the artworks and imposed a tremendous of ₹50,000 on the petitioner’s agency.
Advocates Shreyas Shrivastava and Shraddha Swarup, representing the petitioner, argued that the seizure was arbitrary, unlawful, and in violation of the constitutional rights defending inventive expression.
In April 2023, the Mumbai Customs division had seized a consignment of seven artworks, which included a folio of 4 erotic drawings by Mr. Souza. One among them was titled ‘Lovers’. The opposite three items have been by Mr. Padamsee – a drawing titled ‘Nude’ in addition to two pictures. Mr. Karachiwala’s agency acquired the artworks at two separate auctions in London. The Commissionerate of Customs had seized the consignment when it was dropped at Mumbai.
Revealed – October 25, 2024 10:04 pm IST
