What will you say of Khajuraho temples: Bombay HC to Customs department

MUMBAI: Criticising Customs department for confiscating nude artworks of Francis Newton Souza and Akbar Padamsee on the ground that such "obscene material" is prohibited for import, Bombay high court asked if Customs officials can apply their own notion of what is obscenity. "At this rate, what will you say of Khajuraho temples?" Justice Mahesh Sonak asked the Customs' advocate.

On Monday, a bench of Justices Mahesh Sonak and Jitendra Jain said Souza and Padamsee are world renowned artists. They said "art ultimately reflects the mores of the society". It may be good, bad or horrendous to some, "but the true test of freedom of speech is we are able to appreciate... at least tolerate whatever offends us. Further, a mature society is one that learns to appreciate criticism."

In June and October 2022, three nude drawings of Padamsee and four of Souza, titled 'Lovers', were purchased at auction houses Rosebery's in London and Lyon and Turnbull in Scotland. When they reached Mumbai in April 2023, Customs seized them. The petitioner, B K Polimex India Pvt Ltd, wrote for their release and provided certificates of art galleries Grosvenor in London and Sakshi in India. After a show-cause notice as to why the drawings should not be destroyed and a personal hearing, the July 1 order was passed and Rs 50,000 penalty imposed.

The petitioner's advocate Shreyas Shrivastava complained that Customs had "not even relied on experts' opinion". Customs' advocate Jitendra Mishra said "they are prohibited goods falling under the category of obscene material".

When HC enquired if Customs can ban something in terms of obscenity, Mishra said it relied on a 1964 notification issued under the Customs Act that gives power to prohibit import for the purpose of maintenance of public order and standards of decency or morality.

Shrivastava then said these drawings are publicly available, and even on National Gallery of Modern Art's website. The judges recalled the ban on the book, 'Lady Chatterley's Lover', and standards applied by Supreme Court while deciding the matter. "I don't know if anybody in India could afford it. If they tried to import Michaelangelo's David, you'll say it is obscene? Because it is completely nude. Not even a fig leaf," said Justice Sonak.

Shrivastava said Souza was awarded the prestigious Guggenheim International Award and Padamsee with Padma Shri.

Shrivastava said Souza and Padamsee faced such scrutiny in the past too. In 1979, 62 drawings of Souza's were confiscated by Delhi Customs, adding, "the matter went up to Parliament...Customs conceded it is not obscene." Padamsee was tried under IPC 292 (obscenity) and acquitted by a magistrate court.

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