Not every nude painting can be described as obscene, the Bombay High Court said on Friday while ordering the Customs department to release works by renowned artists F N Souza and Akbar Padamsee seized last year on the ground of being "obscene material".

A division bench of Justices M S Sonak and Jitendra Jain quashed a July 2024 order passed by the Assistant Commissioner of Mumbai Customs, confiscating the artwork, noting that it "suffers 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," HC said.

The bench allowed a petition filed by a firm, B K Polimex India Pvt Ltd, owned by city-based businessman and art connoisseur Mustafa Karachiwala against the Customs order.

The court said the seized artwork shall be released immediately and not later than two weeks to the petitioner.

The bench noted that 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," the court said.

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, HC added.

The bench added that 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 court referred to a judgment passed by the Supreme Court 60 years ago wherein 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," HC said.

The Assistant Commissioner of Customs has relied entirely on his personal interpretation of obscenity while concluding that the Padamsee and Souza artworks are "obscene" and, therefore, prohibited, the HC bench noted.

"He (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," HC said.

The court noted that the assistant commissioner was "utterly obsessed with his notions of obscenity" and relied solely on his conviction that any artwork depicting nudity or sexual intercourse is inherently obscene.

The petitioner claimed the impugned order confiscating the artworks, which had been acquired by him, was arbitrary and illegal and deserves to be quashed.

The bench had earlier this week restrained the department from destroying the artworks confiscated pursuant to the impugned order dated July 1, 2024 until further orders.

The plea said the seized goods contained artworks of renowned artists F N Souza and Akbar Padamsee, who have been awarded prestigious awards by the Indian government.

The petition, filed through advocates Shreyas Shrivastava and Shraddha Swarup, questioned how the Customs department could consider their artwork as obscene.

"The subject work of art is a national treasure of modern art which needs to be given its due recognition. However, the Customs officials have failed to understand the significance of the art and failed to differentiate between art and obscenity," the plea said.

The plea sought that the confiscation order be quashed and the artwork be released.

In April last year, the Mumbai Customs, citing obscenity, seized a consignment of seven artworks, including a folio of four erotic drawings comprising one called "Lovers" by Souza.

The other three, also held back for the same reason, are a drawing titled "Nude" and two photographs by Akbar Padamsee.

Both Souza and Padamsee were part of the Progressive Artists' Group that introduced European modernism to Indian art, and their works are among the most coveted by collectors in India.

In 2022, Karachiwala, through his company BK Polimex Pvt Ltd, acquired the seven artworks at two separate auctions held in London.

But when Karachiwala got them to Mumbai, the special cargo commissionerate of Customs in April 2023 seized the consignment, saying the artworks fell under the category of "obscene material" and, hence, they cannot clear them.

On July 1, 2024, the assistant commissioner of Customs in an "arbitrary and capricious manner" passed an order confiscating the seized goods and imposed a fine of Rs 50,000 on the petitioner firm, the plea said.

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