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TMI Blog2024 (10) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SC 52, the Supreme Court of India, speaking through Justice Hidayatullah, declared that in India, the angels and saints of Michealangelo 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. 2. Accordingly, we issue Rule. The rule is made returnable immediately at the request and with the consent of the learned counsel for the parties. 3. The Petitioner challenges the order dated 01 July 2024 issued by the Assistant Commissioner of Customs (Respondent No.3) confiscating the drawings by world-renowned artists, viz. Mr. F N Souza and Mr. Akbar Padamsee on the ground that such artworks were obscene . Apart from confiscating the artworks, the impugned order dated 01 July 2024 also imposes a fine of Rs. 50,000/- on the Importer/Petitioner. There is no clarity on whether the impugned order directs the destruction of these artworks because at least the show cause notice issued to the Petitioner had ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice. On 16 June 2023, the Petitioner was informed that a personal hearing would be given on 22 June 2023. The Petitioner s representative was heard on 22 June 2023. He also produced a personal appeal from Ms. Meena Joseph Vari, Art Curator, Educator, and Dean at Srishti Institute of Art, Design, and Technology, to release the artworks since they were by no means obscene. 10. On 19 October 2023, the 3rd Respondent issued the Petitioner a show cause notice requiring the Petitioner to show cause why the artworks should not be confiscated and destroyed and why a penalty should not be imposed. In November 2023, the Petitioner filed a reply followed by written submissions. The Petitioner gave instances of how, in the past, the artworks of world-renowned artists were similarly blocked without taking cognisance of the correct legal position in such matters. 11. On 01 July 2024, the 3rd Respondent made the impugned order confiscating the artworks and imposing a penalty of Rs. 50,000/-. It is unclear whether the impugned order directs the destruction of these artworks because at least the show cause notice issued to the Petitioner referred to the destruction of these artworks. Hence the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CC). 18. The ACC bases its entire case on Notification No. 1/1964-Customs dated 18 January 1964, issued under Section 11 of the Customs Act, 1962, and contends that since such artworks constitute obscene drawings, paintings or representations, importing such artworks is prohibited. 19. The relevant extract of the 1964 notification reads as follows: In exercise of the powers conferred by Section 11 of the Customs Act, the Central Government, being satisfied that it is necessary in the public interest so to do, for the purposes specified in subsection 2 of that Section, has prohibited the import of inter-alia the following goods, namely: - (1) .. (2) any obscene book, pamphlet, paper, drawing, painting, representation, figure or article; (3) .. (4) .. (5) .. 20. In concluding that the Padamsee and Souza artworks are obscene and, therefore, prohibited under the Notification dated 18 January 1964, the ACC has relied entirely on his personal interpretation of obscenity. He has neither bothered to seek any experts opinion on the subject nor even looked into the reports, expert opinions and other material submitted by the Petitioner to contend otherwise. The ACC s reasoning shows an Ipse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported artworks fell squarely under the category of prohibited goods, as they depicted complete nudity with sexual positions. The ACC observed: I find that the said imported goods/drawings are perfect for consideration as obscene . 27. The ACC, in the context of the definition of prohibited goods under Section 2 (33) of the Customs Act, 1962, read with Notification 1/1964-Customs dated 18 January 1964 (Sr. No.2), held that the subject imported drawings fall under the category of Prohibited Goods as the said drawings are completely nude with some sexual intercourse position . 28. Thus, in short, the ACC has made the impugned order only because, in his opinion, drawings that portray nudes or drawings that refer to some sexual intercourse positions are obscene in all circumstances. The eminence of the artists, their expertise in the field or the fact that several other experts have acknowledged and even feted such expertise were considered irrelevant considerations. The ACC virtually brushed aside the opinions expressed by the Hon ble Supreme Court or the various other High Courts on the issue of obscenity and stuck to his position that anything completely nude constitutes comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tings are displayed at the Lalit Kala Academy of Indian Government and the National Gallery of Modern Art, India. Several certificates and experts opinions of various art galleries in London and India certifying that such paintings were not obscene were produced by the Petitioner for the consideration of the ACC. But the ACC, so enamoured by his convictions, has refused to even look into this voluminous material placed before him. 33. Akbar Padamsee has been conferred the following awards: - Lalit Kala Academy Fellowship, 1962 J.D. Rockefeller III Fund Fellowship, 1965 Artist in Residence. Stout Residence University, Wisconsin, 1967 Jawaharlal Nehru Fellowship, 1969 Kalidas Samman, Madhya Pradesh Government, 1997-1998 Lalit Kala Ratna, Lalit Kala Academy, New Delhi, 2004 Padma Bhushan, Government of India, 2010. 34. Similarly, FN Souza has been conferred the following awards: - John Moore Prize, Liverpool, 1957 Italian Government Scholarship, 1960 Guggenheim International Award, New York, 1967. 35. While these accolades do not exempt an artist from scrutiny, the ACC should not have entirely ignored the artistic merit and the worldwide recognition these artists have garnered. The AC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of the ACC s personal opinions. A mere ipse dixit would not suffice. Ipse dixit is a Latin term that translates to he himself said it . In the legal context, it refers to an assertion or statement made by an individual based solely on their own authority, without any supporting evidence or proof (LII/Legal Information Institute. https: www.law.cornell.edu Wex). Public officials must act within the law, not based on personal ideology. 40. Suppose public authorities vested with powers to decide on vital aspects prefer ipse dixit over the law and legal precedents. In that case, we stand to degenerate from a system sworn to the rule of law to the rule of men. The rule of law demands that public functionaries 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. Aristotle extolled a government according to institutionalised impersonal rules and condemned a government by personal fiat. That is the difference between the rule of law and the rule of men. In a democratic set-up like ours, we pride ourselves on being governed by the rule of law and not the rule of men. Every pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted by the Delhi customs for considering a certain work of art as obscene and erotic then what shall we do when we are confronted with our own temples at Khajuraho and Konark? Are we going to hang our heads in shame? Today, we have a backward mind as reflected in the Delhi customs [as reported in https:// www.livemintg.com/Leisure/dZyMulvnr9fPEEJhsdgqpK/E xcerpt-A-Scrapbook-Of-Memories.html] 43. The legal position on obscenity requires a reference to Section 292 of the Indian Penal Code, which provides that whoever, among other things, sells or even has in his possession any obscene book, pamphlet, paper, writing, drawing, painting, representation or figure or any other obscene object whatsoever or imports, exports or conveys any obscene object for any of the purposes aforesaid shall be committing an offence punishable under Section 292 of the Indian Penal Code. 44. In Ranjit Udheshi (supra), the Hon ble Supreme Court accepted the test for determining obscenity propounded by Cockburn, C.J. in the Regina Vs Hicklin (1868) LR 3 QB 360. This test requires the decision maker to assess the tendency of the matter charged as obscenity to deprave and corrupt those whose minds are open to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bserved that the world can now tolerate much more than formerly, having become indurated by the literature of different sorts. The attitude is not yet settled. This is what the Court said in 1964. Again in 1969, in Chandrakant Kalyandas Kakodkar Vs. State of Maharashtra 1969 (2) SCC 687, the Supreme Court reiterated the principle by stating that the standards of contemporary society in India are also fast changing. This principle was reaffirmed in Samaresh Bose and another vs Amal Mitra and another (1985) 4 SCC 289 and in S. Khushboo Vs. Kanniammal Anr (2010) 5 SCC 600. 48. In Aveek Sarkar and another Vs. State of West Bengal and others (2014) 4 SCC 257, the Court was concerned with a criminal prosecution under Section 292 against some Indian magazines that had reproduced a German magazine photograph. This was a photograph of Boris Becker, a world-renowned tennis player, posing nude with his dark-skinned fianc e by name Barbara Feltus, a film actress, but Boris Becker covering his fianc e s breast with his hands. The article and the photograph ran with the caption Posing nude dropping out of tournaments, battling Racism in Germany. Boris Becker explains his recent approach to life ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 292 of the Indian Penal Code and observed that the learned Magistrate should have exercised his wisdom based on judicial precedents in the event of which he would not have ordered the appellants to face the trial. The Supreme Court also held that the High Court should have exercised powers under Section 482 of CrPC to secure the ends of justice. 52. In Raj Kapoor vs State12, the Supreme Court quashed the criminal proceedings initiated against Raj Kapoor for alleged obscenity in his film Satyam Shivam Sundaram . Krishna Iyer, J., observed that morals made to measure by statute and court are risky with a portentous impact on fundamental freedoms. In our constitutional order, the root principle is the liberty of expression and its reasonable control with the limits of public order, decency or morality . Here, social dynamics guide legal dynamics in the province of policing art forms. The relation between reality and relativity must haunt the Court s evaluation of obscenity, expressed in society s pervasive humanity, not the law s penal prescriptions. 53. The Court noted that social scientists and spiritual scientists would broadly agree that man lives not alone by mystic squints ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purusua. The ultimate essence of a work of ancient Indian erotic art has been religious in character and can be enunciated as a state of heightened delight or ananda, the kind of bliss that can be experienced only by the spirit. 3. Today Indian art is confidently coming of age. Every form of stylistic expression in the visual arts, from naturalism to abstract expressionism derives its power from the artist's emotional connection to his perceptual reality. The Nude is contemporary art, a perennial art subject, considered to be the greatest challenges in art has still not lost its charm and focuses on how the human form has been re-interpreted by the emerging and influential artists today. The paintbrush has become a powerful tool of expression as the pen is for some, and has thus occasionally come under the line of fire for having crossed the 'Lakshman Rekha and for plunging into the forbidden, which is called 'obscene', 'vulgar', 'depraving', 'prurient' and 'immoral. No doubt this form of art is a reflection of a very alluring concept of beauty and there is certainly something more to it than pearly 'flesh' but what needs to be d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... average person would, in much the same way, as it is wrongly said, a Frenchman sees a woman's legs in everything, it cannot be helped. 58. In Indibily Creative Private Limited and others vs Government of West Bengal and others (2020) 12 SCC 436 , the Hon ble Supreme Court criticised the approach of public authorities, including the police, in refusing to assist in filming a movie in West Bengal. The police, despite certification from CBFC, did not allow the film to be exhibited. The Court observed that the police are the self-appointed guardians of public morality, not in a free society. The uniformed authority of their force is subject to the rule of law. They cannot arrogate the authority to be willing allies in suppressing dissent and obstruction of speech and expression. The Court held that the danger the case exemplifies is the peril of subjecting citizens' freedom of speech and expression to actions not contemplated by the statute and lie beyond the lawful exercise of public power. The Court held that if the right of the playwright, artist, musician or actor were subjected to popular notions of what is or is not acceptable, the right itself and its guarantee under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a grave danger that a cloud of opacity and arbitrary State behaviour will imperil fundamental human freedoms. 62. 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. 63. Undeterred, the Customs Department challenged the CESTAT s judgment and order dated 11 May 2023 in Customs Appeal (L) No. 582 of 2024 and connected matters. By judgment and order dated 20 March 2024, the Co-ordinate Bench of this Court approved the CESTAT s stinging criticism of the Customs Commissioner s approach. This Court held that if what was observed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y. 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. 66. The Customs laws of India do not insist that Michelangelo s David be fully clothed before he passes through our Customs Borders. An assistant commissioner of customs 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. 67. 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 work ..... X X X X Extracts X X X X X X X X Extracts X X X X
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