Bombay High Court orders Customs Dept. to release artworks of Francis Newton Souza and Akbar Padamsee in next two weeks  

Bombay High Court orders Customs to release seized artworks by Souza and Padamsee, deeming obscenity allegations unfounded.

The Bombay High Court on Friday (October 25, 2024) directed the Customs department to release the confiscated artworks by renowned artists Francis Newton Souza and Akbar Padamsee within two weeks. The artworks were seized in 2023 over allegations of obscenity.   

A Division Bench of Justices M.S. Sonak and Jitendra Jain quashed and set aside the July 1, 2024 order passed by the Assistant Commissioner, Commissionerate of Mumbai Customs, confiscating the artwork. It said the order suffered 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.” 

On Friday, the Bench allowed a petition filed by B.K. Polimex India Pvt Ltd., a company owned by Mumbai-based businessman and art collector Mustafa Karachiwala and ordered that the seized artwork be “released immediately and not later than two weeks” to the petitioner.  

“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. 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,” the Bench observed. 

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 High Court said in the order.   

Referring to a Supreme Court judgement, the Bench said, “In a judgement passed by the Supreme Court sixty years ago, 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. The Assistant Commissioner of Customs has relied entirely on his personal interpretation of obscenity and concluded the artworks obscene.”