Customs Laws Do Not Insist That Michelangelo’s David Be Fully Clothed: Bombay HC Quashes Order Confiscating 'Obscene' Artworks
The Bombay High Court observed that the Constitution does not permit those in authority to crush the freedom of others to believe, think, and express.
The Court observed thus in a writ petition challenging the order of the Assistant Commissioner of Customs (ACC) by which some artworks were confiscated on the ground of ‘obscenity’.
A Division Bench comprising Justice M.S. Sonak and Justice Jitendra Jain remarked, “The views of the writer of a play, the metre of a poet or the sketches of a cartoonist may not be palatable to those who are criticised. Those who disagree have a simple expedient of not watching a film, not turning the pages of the book, or not hearing what is not music to their ears. The Constitution does not permit those in authority who disagree to crush the freedom of others to believe, think and express. The ability to communicate “ideas” is a legitimate area of human endeavour and is not controlled by the acceptability of the views to those to whom they are addressed.”
The Bench said that, when the ability to portray art in any form is subject to extra-constitutional authority, there is a grave danger that a cloud of opacity and arbitrary State behaviour will imperil fundamental human freedoms.
"The Customs laws of India do not insist that Michelangelo’s David be fully clothed before he passes through our Customs Borders.", the Court added.
Advocate Shreyas Shrivastava appeared on behalf of the petitioner while Advocate Jitendra B. Mishra appeared on behalf of the respondents.
Facts of the Case -
The ACC prohibited the import and ordered confiscation (and possibly destruction) of seven drawings by world-renowned artists, viz. F N Souza and Akbar Padamsee on the ground that such artworks, in his opinion, were obscene. Apart from confiscation, a fine of Rs. 50,000/- was also imposed on the petitioner/importer. There was no clarity on whether the ACC’s order directed the ‘destruction’ of these artworks because at least the show cause notice issued to the petitioner had referred to the destruction of these artworks.
In 2022, the petitioner had purchased three drawings by Akbar Padamsee at an auction by Rosebery’s London and four by Francis Newton Souza from the auctioneers Lyon and Turnbull London. In 2023, the petitioner booked M/s. Stephen Morris Shipping PLC for the said artworks. The invoices specifically mentioned that the consignment from London to India was “nude drawings” after considering the provisions of the Customs Act, 1962, and to ward off the charge of any misdeclaration and suppression. When the artworks reached India, the Customs officials threatened not just confiscation but also destruction of these valuable artworks as per the petitioner’s counsel.
The High Court in view of the facts and circumstances of the case, noted, “The impugned order in the present case ignores most relevant considerations like expert opinions, appeals from experts, artistic value, contemporary community standards, and several legal precedents on the subject. 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 added that the ACC brushed aside several legal precedents by trying to distinguish them on frivolous or even jejune grounds and the circumstance that similar artworks are available in the domestic market or displayed in prestigious art galleries nationally and internationally was entirely ignored.
“The reasoning in the impugned order is quite perverse. Therefore, judged by the law laid down by the Hon’ble Supreme Court and other High Courts in such matters, we are satisfied that the impugned order is unsustainable and must be quashed and set aside”, it held.
Furthermore, the Court observed that the objection on the availability of alternate remedy cannot stand given that this is a gross case where the ACC has entirely acted without jurisdiction by refusing even to take cognisance of the law laid down by the Supreme Court and by attempting to distinguish the decisions on grounds which border perversity.
“This is a classic case where the ACC, obsessed by his convictions on obscenity in art, has usurped jurisdiction he did not have. In such a situation, to require the Petitioner to avail of the alternate remedy would not be appropriate”, it also remarked.
The Court said that the Customs laws of India do not insist that Michelangelo’s David be fully clothed before he passes through our Customs Borders and an ACC 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 alternate remedy in the facts of this gross case would not amount to an efficacious remedy for yet another reason. … 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 petitioner to go through the regular channels of appeals and second appeals is not quite appealing”, it noted.
Accordingly, the High Court allowed the petition, quashed the impugned order, and directed the ACC to release the confiscated artworks within two weeks.
Cause Title- M/s. B. K. Polimex India Private Limited v. Union of India & Ors. (Neutral Citation: 2024:BHC-AS:42748-DB)
Appearance:
Petitioner: Advocates Shreyas Shrivastava, Saurabh Shrivastava, and Shraddha Swarup.
Respondents: Advocates Jitendra B Mishra, Abhishek Mishra, and Rupesh Dubey.
