AUGUST 21, 2018

By Ashwani Kumar

THE introductory Para of Notification No. 01/64-Customs dated 18th January, 1964 issued under Section 11 of the Customs Act, 1962 states that the Central Government, being satisfied that it is necessary in the public interest so to do, hereby prohibits the import of the following goods, which among other things at S. No. 2 includes:

"any obscene book, pamphlet, paper, drawing, painting, representation, figure or article; "

The Notification states it is issued in public interest. Please take note that the "interest" dates back to the year 1964!

Be that as it may, it is difficult to exactly guage what public interest the notification serves but one thing is clear that the public interest is different in 2018 than what it used to be in 1964.

The Indian mind-set has certainly changed. With access to 'cheap' internet, every kind of "obscene" material is easily available.

On the pretext of controlling obscenity, while hearing the ban imposed on dance bars in Mumbai, a bench of Hon'ble Supreme Court on 9th August, 2018 said that there was "total moral policing." The bench also observed that the concept and perception of obscenity had changed with time.

Take the case of a person ordering online a sex toy device for his personal use which is delivered from overseas at his doorstep by the courier. Another example is of a passenger coming from abroad, bringing a sensuous canvas painting to decorate his bedroom. The Customs department detains such articles considering it as an "obscene" material which is prohibited for import under the Customs Act. They are right since the notification says so.

The matter does not end with detention. Adjudication proceedings have to be initiated to meet the ends of natural justice. Therefore, a Show Cause Notice (SCN) is issued to the person proposing confiscation of the 'obscene' items. Eventually, the adjudication "consummates" into an order of absolute confiscation and imposition of penalty on the importer / passenger. While ordering confiscation of the goods, the order also cites Section 292 (2) (b) of the IPC 1860 . Mind you, a 158 years old law guides the proceedings.

Have you ever wondered what happens to these 'obscene confiscated items'? These goods cannot be sold in auction. Ideally, perhaps, sadly, these detained / confiscated goods should be destroyed at the earliest with the approval of the Commissioner of Customs in an environment friendly manner. But the ground reality is different. The detained goods are supposedly forgotten unless the importer / passenger challenges the detention.

In either case, the detained/ confiscated goods remain unattended (?) for years in the custody of custodians of International Courier terminals, Foreign post offices, Air Cargo Complexes, CFSs, ICDs, primary reason being that the Department does not have to pay any kind of rent on detained / seized / confiscated goods to the appointed custodians as per the provisions of the Customs HCCA Regulations, 2009. This can be discussed some other time.

Historically, India pioneered the use of sex education through various art forms like sculptures, paintings, and pieces of literature. Nudity in art form is shown by the paintings at Ajanta and the sculptures of the time. The Khajuraho temples feature a variety of art work, some of which is sexual or erotic art, outside and inside the temples. The Kama Sutra is an ancient Indian text on human sexual behaviour. For argument sake, it may be reasoned that if books on sexuality, paintings and articles of sexual pleasure are obscene then the Kama Sutra and Khajuraho temples should be fully clothed and not remain visible to the "preying" eyes.

Going back to the issue with which I began this piece, the fact of the matter is that the person has purchased and imported the book/painting or the article for his enjoyment and pleasure.It is difficult to understand how the morality of the public at large is going to be jeopardized by the person importing a sex pleasure article which is meant for his / her personal use. The goods are neither in commercial quantity nor meant for sale or exhibition or circulation. Why should the person be ridiculed and punished for that?

The distribution and production of pornography are both illegal in India; however, accessing pornography in private is not. Courts have held that me repossession of an obscene book or an article is not a crime. Why deprive the person who wants to satisfy his basic sexual urge within the four walls of his house? More the restrictions, more is the curiosity and violation.

It is also pertinent to mention that "vibrating penis rings" of a popular brand are sold through pharmacies in retail in India and also on e-commerce websites in India. Similar products in the market are called "Pleasure Rings" and classified as vibrators.

Apparently, these products are not 'supposedly prohibited items' and are not hit by the yardstick of obscenity in terms of Notification No. 01/64-Customs dated 18.01.1964.

Incidentally, Section 292 of the IPC inter alia prohibits imports, exports, publishing, selling, having, distributing, exhibiting or circulating, an obscene book, pamphlet, drawing, painting, paper or any obscene object. Neither English nor Indian laws define " obscenity " though both lay down exacting standards as to what will be deemed to be obscenity. What is obscene and what is not is necessarily dependent upon the moral values prevailing in a community at a particular time. What was considered obscene a few years ago may well be innocuous today.

The Calcutta High Court, seven years ago, in the case of Kavita Phumbra v. Commissioner of Customs (Port), Calcutta, - 2011-TIOL-466-HC-KOL-CUS categorically held that import of articles relating to adult use or pertaining to sex cannot be held as obscene merely because of its nature. The Court held that - "an article or instruction suggesting various modes for stimulating the enjoyment of sex, if not expressed in any lurid or filthy language, cannot be branded as obscene."

So essentially, the ball is in the court of the Central Government and it needs to fix two things:

1) Amend the Customs Notification No. 01/64 dated 18.01.1964 and Section 292 of IPC, 1860 suitably in the present context.

2) The provisions of law should be applied / enforced in letter and spirit .

To highlight what the Calcutta High Court observed - "… moral standards vary from community to community and from person to person within one society itself. The morals of the present day in our society also do not represent a uniform pattern. The variations and the variables inside a certain society are also crucial considerations while judging whether an object comes within the mischief of obscenity. We cannot shut our eyes to the changes that are taking place in our society… "

(The views expressed by the author are his personal views.)