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Import of Obscene goods - Who decides obscenity - Customs?

APRIL 03, 2024

By Vijay Kumar

THIS is in continuation of my last week's column, Massager or sex toy? which sparked a flurry of comments prompting me to bring out some more cases where the Customs Department decided on obscenity.

A trader imported certain items meant for sale to adults only. The Assistant Commissioner of Customs issued a notice to show cause why the goods should not be confiscated under S. 111 (d) of the Customs Act. The main charge was that the goods imported were obscene as it appeared to them to be lascivious and appealed to the prurient interest and that its effect would tend to deprave and corrupt persons who were likely to read, see, hear and enact the instructions contained or embodied and these goods were not suitable to young persons.

The Additional Commissioner of Customs held that certain items were obscene and objectionable and confiscated them.

The Commissioner (Appeals) dismissed the appeal.

The Customs Excise & Service Tax Appellate Tribunal also dismissed the appeal.

A lady Member of the Film Certification Board had opined that the goods were not obscene, but the Tribunal held that her opinion was given without taking into consideration the provisions of the Customs Act - Bengal Trade Links Vs Commissioner of Customs - 2009-TIOL-1097-CESTAT-KOL

Is obscenity different under the Customs Act or do we have a National Obscenity Policy?

This case reached the High Court in Kavita Phumbhra Vs Commissioner Of Customs - 2011-TIOL-466-HC-KOL-CUS, and the Court observed,

A very difficult aspect of the law of obscenity is lack of any precise definition. Perhaps no authority in the world has been able to define obscenity in any concrete terms.

If that not be so, books like Kama Sutra should also be banned on the charge of obscenity as this ancient Sanskrit treatise on the art of love and sexual techniques also candidly contains various instructions for heightening the pleasures of sexual enjoyment.

Thus, it is obvious that neither the Customs authorities nor the Tribunal could approach the whole issue in the perspective of the settled legal positions and the changing modern concepts. On the other hand, morality has been conceptualized by some vague and individualized standards and imposed in an overbearing manner.

The Tribunal below while passing the impugned order has simply not cared to offer any reason why it considered the concerned items as obscene. Assigning tangible and substantial reasons was particularly necessary because obscenity has neither any fixed definition nor an inflexible standard. Instead, what we get in the Tribunal's order is only a conclusion that it considered certain items as obscene and practically nothing more.

What is obscene?

A statue of a Baby Ganesh in a crawling position - Is it obscene? Customs thought so; the Commissioner (Appeals) did not and the CESTAT agreed in Commissioner of Customs, Jaipur Vs The Royale [2006-TIOL-2006-CESTAT-DEL]

In his famous Novel, "The Seven Minutes", Irving Wallace brings this out in a masterly way.

The story goes like this: -

The book, "Seven Minutes" is being tried in the Court as obscene. An average American Lady is presented as a witness who affirms that the book is indeed obscene. The defence lawyer tells her that he would read to her some excerpts from recent translations or renderings of four popular books, all written by famous authors. As he finished reading each of the four excerpts, she was to tell him whether in her opinion it was or was not obscene.

He started.

Story No.1:- There was but one point forgot in this treaty, and that was the manner in which the lady and myself should be obliged to undress and get to bed ...

'Not obscene,' said the witness.

Story No.2:- She undressed brutally, ripping off the thin laces of her corset so violently that they would whistle round her hips like a gliding snake. She went on tiptoe, barefooted, to see once more that the door was locked, then with one movement, she would let her clothes fall at once to the ground; - then, pale and serious, without a word, she would throw herself against his breast with a long shudder.

'Not obscene.' declared the witness.

Story No.3:- The manager looked at his lovely prize, so beautiful, so winsome, so difficult to be won, and made strange resolutions. His passion had gotten to that stage now where it was no longer coloured with reason. He did not trouble over little barriers of this sort in the face of so much loveliness. He would accept the situation with all its difficulties; …. He would make a try for Paradise ... '

'Not obscene, not at all.', declared the Average Lady.

Story No.4:- Actually, these passages are too lengthy to quote from in detail. If you don't mind, I'll take the liberty of synopsizing some of the passages. We have here a young man who is married to a young woman, but he has been unable to consummate their marriage. The young man dies and his wife is widowed. Now the brother of the dead young man appears before the widow, determined to impregnate her. Either before or during copulation with her, he has second thoughts about what he is doing. He refrained from giving her his semen, and he masturbates instead. Later we have another adventure in this young widow's life. She is angry at her father-in-law. She wants to expose his own lechery. One day she disguises herself as a prostitute and allows her father-in-law to pick her up and copulate with her. When the father-in-law learns that his widowed daughter-in-law has become pregnant, he wants to punish her, but then he is exposed as the one who made her pregnant.'

'Obscene,' the witness said. 'Utterly and definitely obscene.'

Now the lawyer tells her the source of the extracts which he read out to her.

1. The first extract was the most suggestive passage in Sterne's "A Sentimental Journey through France and Italy". The witness said the passage was not obscene. But in 1819 the book was declared obscene by the Vatican and banned throughout the world.

2. The second extract was one of the more controversial ones from Flaubert's "Madame Bovary". In 1856, when Flaubert's book was published in France, it was taken into court on charges of obscenity, and in 1954 it was blacklisted by certain purity groups in the United States. The witness said it was not obscene.

3. The third extract was one of the more suggestive ones from Dreiser's "Sister Carrie". In 1900 when the book appeared, it was banned in Boston, and to avoid further charges of obscenity it was withdrawn from circulation and suppressed. The witness said it was not obscene.

4. As for the fourth and last book from which was quoted, that extract was taken from a modern translation of the Old Testament of the Holy Bible! And this was the only extract which the witness found obscene - utterly obscene.

In 1928, a book "The Well of Loneliness", a story about two lesbians, was banned for seven words - "And that night they were not divided." In 2009 the Delhi High Court had held that the ladies were not into any illegal activity. And the Supreme Court confirmed.

Khushwant Singh is said to have subscribed to the 'Screw' magazine, which the customs department cleared assuming it to be an engineering guide! He wrote,

I ran into the head of Bombay Customs and told him that while my copies of the Playboy were regularly seized for obscenity, a really obscene journal Screw escaped their attention. He made enquiries and discovered that the officer concerned had assumed that Screw was an engineering magazine!

Khushwant Singh once wrote,

"Once when I was in the US, I took a year's subscription to Playboy and wrote to its editor not to have the name of the magazine on the wrapper. He ignored my request. No sooner, than the first copy arrived, I got a letter from the Indian Customs asking me to explain why I was receiving obscene literature. I have little doubt the customs chaps enjoyed looking at the girlie pictures and even sold the journal at a considerable profit!"

RK Laxman had a weird experience with the Customs. He wrote:

"…A letter arrived from the postal apprising department. It informed me that I had been held guilty of importing obscene literature into the country in violation of the Sea Customs Act of 1892. I was further told that the offensive material had been impounded and I was ordered to explain why I should not be prosecuted!

As I read it an ice-cold chill went down my spine! I later learnt that a well-meaning American friend, who was posted at the US consulate in Bombay years earlier, had sent me the bumper issue of Playboy magazine as a Christmas gift.

I began to run around desperately looking for trusted friends who would help me out of this embarrassing situation. But instead of helping me, after reading the letter quizzically as if I had been caught in some naughty act, they asked in a confiding tone if I would let them have a look at the forbidden magazine!

……

Gradually with the passing of time my anxiety wore off. I even began to regale groups of friends at parties with this story, which kept them roaring with laughter…

……. After some months….

Among them (pile of accumulated letters) was a sickly-brown envelope bearing a Government of India stamp. My heart missed a beat at the sight of correspondence from the postal department. I did not realize that I was still held guilty of impunities committed under the Sea Customs Act; I had supposedly imported obscene literature into the country over a year ago!

I hurriedly tore open the envelope and read the letter, skimming over the chilling words, anxious to get to the vital point where my punishment was pronounced. '…penal…action…Playboy…objectionable goods…Customs Act…1892…' Just as I was about to resign myself to being jailed as an obscene-minded freak in a community of people of high morals, I saw typed faintly at the very bottom of the letter, 'Your explanation has been accepted and the offending material has been seized absolutely.' Thereby meaning that I had been honourably acquitted!"

That makes one wonder if there is GST on porn through internet?

Until next week


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