2024 (10) TMI 1366 - HC - Customs

Obscene art materials - prohinition on import and confiscation of seven drawings by world-renowned artists, Mr. F N Souza and Mr. Akbar Padamsee - entire case is based on N/N. 1/1964-Customs dated 18 January 1964, issued under Section 11 of the Customs Act, 1962, and it is contended that since such artworks constitute obscene drawings, paintings or representations, importing such artworks is prohibited - HELD THAT - 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. 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 danger of vesting Customs authorities to 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. 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 ACC has brushed aside several legal precedents by trying to distinguish them on frivolous or even jejune grounds. 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. 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 petitioner to go through the regular channels of appeals and second appeals is not quite appealing. Equally unappealing is the argument that the Petitioner applied for re-export when confronted with a customs official who treated not just to confiscate but to destroy the artworks of the world-renowned artists. Discretion was perhaps thought the better part of valour by way of an offer to at least allow re-export. To deny the petitioner relief on such grounds would be a travesty of justice. The impugned order is set aside - petition allowed.

Summary

Issues Involved:

1. Whether the artworks by Akbar Padamsee and F N Souza are "obscene" under the Customs Act, 1962 and Notification No. 1/1964-Customs.
2. Whether the Assistant Commissioner of Customs' order of confiscation and possible destruction of the artworks was justified.
3. Whether the petitioner's application for re-export affects the legal standing of the artworks.
4. Whether the alternate remedy of appeal is applicable in this case.

Issue-wise Detailed Analysis:

1. Obscenity of Artworks:
The primary issue was whether the artworks by Akbar Padamsee and F N Souza were "obscene" as per the Customs Act, 1962, and Notification No. 1/1964-Customs. The Assistant Commissioner of Customs (ACC) deemed the artworks obscene based on his interpretation of nudity and sexual poses depicted in the drawings. However, the court highlighted that the ACC's reliance on personal interpretations without seeking expert opinions or considering the artistic merit and international recognition of the artists was flawed. The court emphasized that obscenity must be judged by contemporary community standards and not merely by the presence of nudity. The court referenced several Supreme Court decisions, including Ranjit D Udheshi and Aveek Sarkar, which rejected the Hicklin test and emphasized that sex and obscenity are not synonymous. The court concluded that the artworks could not be deemed obscene merely because they depicted nudity or sexual poses.

2. Justification of Confiscation and Destruction:
The court found the ACC's order for confiscation and possible destruction of the artworks to be perverse and unreasonable. The ACC ignored relevant material, including expert opinions and legal precedents, and based his decision on personal convictions. The court criticized the ACC's "Ipse Dixit" approach, where he concluded that anything depicting nudity is inherently obscene. The court noted that the ACC failed to appreciate that "Sex and obscenity are not always synonymous," as stated by William J Brennan, Jr. The court held that the ACC's order was unsustainable and must be quashed.

3. Application for Re-export:
The petitioner's application for re-export was made under duress, as the customs officials threatened confiscation and destruction of the artworks. The court found that the petitioner's application for re-export did not affect the legal standing of the artworks. The court noted that discretion was exercised by the petitioner to avoid the destruction of valuable artworks, and denying relief on such grounds would be a travesty of justice.

4. Alternate Remedy of Appeal:
The court held that the objection on the availability of an alternate remedy was not applicable in this case due to the ACC's gross overreach of jurisdiction. The ACC ignored the law laid down by the Supreme Court and attempted to distinguish decisions on grounds bordering on perversity. The court emphasized that requiring the petitioner to avail of the alternate remedy would not be appropriate, as the ACC might destroy the artworks if the petitioner resorted to departmental appeals. The court concluded that the alternate remedy would not be efficacious in this case.

Conclusion:
The court allowed the petition, quashed the impugned order, and directed the immediate release of the confiscated artworks to the petitioner. The rule was made absolute, and no costs were awarded. The court underscored the importance of adhering to legal precedents and community standards when determining obscenity, rather than relying on personal opinions of public officials.