In a landmark judgment that reiterates the initial views on the intersection of art and legal oversight, the Bombay High Court has mandated the Customs department to return the seized artworks of eminent Indian artists Francis Newton Souza and Akbar Padamsee within a span of two weeks. The court’s directive came on Friday, October 25, 2024, after thorough proceedings revealed that the confiscation, initiated by allegations of obscenity, lacked substantial grounding.
The confiscation order, originally issued on July 1, 2024, by the Assistant Commissioner of the Mumbai Customs, has been declared null and void by a Division Bench comprising Justices M.S. Sonak and Jitendra Jain. The Bench criticized the decision as being marked by “perversity and unreasonableness.” In the well-articulated ruling, the Justices asserted that the Assistant Commissioner failed to recognize the distinction between sex and obscenity. They maintained that typically, obscene material refers to that which portrays sex in ways meant to titillate rather than inspire artistic appreciation. Therefore, the court opined that the act of labeling these artworks as obscene was untenable.
The court’s directive came in response to a petition by B.K. Polimex India Pvt Ltd., a firm owned by well-known Mumbai businessman and art collector Mustafa Karachiwala. The High Court decisively ordered the Customs department to “release immediately and not later than two weeks” the artwork to the petitioner. The ruling underscored a critical observation that the Assistant Commissioner’s judgment seemed solely focused on nudity and sexual themes as markers of obscenity, disregarding the broader cultural and artistic perspectives.
. The Bench emphasized that defining art purely on personal biases and aesthetic preferences of public officials is inadequate and unacceptable.
Referring to fundamental tenets of the law, the High Court reminded public officials of their obligation to act within the legal framework and refrain from arbitrary or ideologically driven decisions. The Bench cited a poignant Supreme Court judgment from sixty years ago, underscoring that the nudity exhibited in classic works such as those by Michelangelo does not warrant censorship or concealment. Contrarily, the Assistant Commissioner had opted to prohibit the import, and potentially sought to confiscate and destroy, seven artworks by Souza and Padamsee, relying solely on a subjective interpretation of their content.
In a firm rebuke of the Customs department’s actions, the Bench noted the absence of any expert consultation or consideration of the extensive documentation provided by the petitioner. The Assistant Commissioner’s reasoning, as the court observed, appeared to subscribe to an ‘Ipse Dixit’ principle—unjustified assertions exempt from factual endorsement—focusing narrowly on nudity as prima facie evidence of obscenity.
The court’s interim intervention earlier in October 2024 halted the destruction of the artworks, reserved as part of its protective measures leading to this conclusive judgment. The current verdict challenges the legitimacy of the July 1, 2024, directive by the Customs, citing an arbitrary and capricious approach in both seizing the artworks and imposing a hefty fine of ₹50,000 on Mr. Karachiwala’s enterprise.
Representing the petitioning enterprise, legal advocates Shreyas Shrivastava and Shraddha Swarup strongly argued against the Customs’ actions, designating them as not only arbitrary and illegal but also as infringements on the constitutional right to artistic expression. The case began with the Mumbai Customs department’s 2023 confiscation of seven artworks, which included a set of four erotic drawings by Souza, among them the notable piece titled ‘Lovers’. Accompanying these were three works by Padamsee: a drawing named ‘Nude’ and two photographs, all procured via auction in London.
This verdict stands as a significant reinforcement of the judicial commitment to protecting creative freedom and expression against unfounded censorship, while also emphasizing the necessity for administrative caution in matters touching upon highly subjective domains like art. As art collectors and enthusiasts keep a watchful eye on such developments, the case sends a resounding message: Artistic expression holds a revered place within the framework of rights and freedoms, immune to capricious restraints of subjective prejudice.
