Not every nude painting is obscene, says Bombay High Court

Representation pic

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 grounds that such artworks, in his opinion, were obscene," HC said.

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