The Kerala High Court recently stated that nudity and obscenity should not always be considered synonymous. The court made this observation while hearing a case involving women's rights activist Rehana Fathima, who was charged under the Protection of Children from Sexual Offences (POCSO) Act and the IT Act. It also emphasized that the assumption of nudity in a female upper body as sexual and categorizing the portrayal of a woman's nude body as obscene, indecent, or sexually explicit should not be taken for granted.
Brief Facts:
A Kerala women's rights activist shared a controversial video on social media, featuring her two young children painting on her partially nude body. The act sparked outrage and accusations of indecency. The activist defended it as a way to challenge societal taboos. The police filed charges based on the Protection of Children from Sexual Offences Act, Information Technology Act, and Juvenile Justice Act. She appeared in court, was granted bail, and filed for discharge, but her application was dismissed. The court decision was subsequently challenged in the High Court.
Contentions of the Appellant:
The petitioner's counsel argued that after reviewing the FIR, FIS, witness statements, and documents, no evidence supports the alleged offenses against the petitioner. They stated that the uploaded video aimed to normalize the female body and discourage sexualization in children, considering the accompanying message. The counsel emphasized the societal double standard between the sexualization of female and male bodies. They claimed that the petitioner should have been discharged under Section 227 of Cr. P.C due to insufficient grounds. Additionally, the counsel argued that body art involving nudity is a protected expression under Article 19(1)(a) and Article 21 of the Indian Constitution.
Contentions of the Respondent:
The Senior Public Prosecutor, Smt. T.V. Neema presented evidence in the final report implicating the petitioner in the alleged offenses. The video in question depicts the petitioner partially nude, with her 14-year-old son touching her breast and other body parts to create a picture. The prosecutor argued that this sexually explicit act involving a child suggests the petitioner's sexual intention and gratification. The video content is deemed obscene and pornographic, further highlighting the involvement of a child. Additionally, the prosecutor asserted that there are no legal or procedural flaws justifying intervention under Section 397 of the Criminal Procedure Code.
Observations by the Court:
The offense under Section 13(b) and Section 14 pertains to using a child in any form of media for sexual gratification, including real or simulated sexual acts. However, in this case, the court noted, the core allegation is that the petitioner allowed her children to paint on her naked upper body, which was then recorded and uploaded to YouTube. There is no evidence or suggestion that the children were involved in any real or simulated sexual acts or used for sexual gratification, the court held. The petitioner's actions are protected under her right to autonomy and privacy, as affirmed by the Supreme Court in previous judgments such as Joseph Shine v. Union of India and K.S. Puttaswamy v Union of India.
Further, the court while holding that the offense under Section 13(b) in conjunction with Section 14 does not apply to this case, held that the act of children painting on their mother's upper body for an art project is not a sexual act and lacks sexual intent or gratification. It is unfair to categorize this innocent artistic expression as the use of a child in a sexual act. The video contains no pornography or sexual content, and the petitioner's stated purpose was to challenge the sexualization of women's bodies, the court held.
The court further examined Sections 67B(a)(b) and (c) of the IT Act and noted that Subsection (a) applies only when material depicts children involved in sexually explicit acts. In this case, there is no evidence or occurrence of any sexually explicit act, the bench held. Painting on a naked upper body, regardless of gender, cannot be considered sexually explicit. Subsection (c) is irrelevant since there is no claim of cultivating or enticing children into online relationships for sexually explicit acts. Subsection (b) pertains to material depicting children in an obscene, indecent, or sexually explicit manner.
“That apart, the video must be appreciated in the background in which it was made and in the light of the message it wanted to convey, that is, there needs to be nothing sexual or offensive about the naked female body. When viewed from that angle, it cannot be said that the video is obscene or indecent merely because it depicts the naked upper female body of the petitioner. As rightly reasoned by the petitioner in the write-up attached to the video, just as beauty is in the eyes of the beholder, so is obscenity"
The offense under Section 75 of the JJ Act was not applicable as there was no assault or abandonment of the child, as required by the provision. Moreover, the Court recognized that prosecuting the petitioner would hurt the children, and thus, it was not deemed in their best interests to proceed with the case.
"It is wrong to classify nudity as essentially obscene or even indecent or immoral. This is a State where women of certain lower castes had once fought for the right to cover their breasts. We have murals, statues, and art of deities displayed in the semi-nude in ancient temples run all over the country. Such nude sculptures and paintings freely available in public spaces are considered art, even holy. Even though the idols of all Goddesses are bare-chested, when one prays at the temple, the feeling is not of sexual explicitness but of divinity"
The decision of the Court:
The order was set aside and the petitioner was discharged.
Case Title: XXX v. State of Kerala
Coram: Hon’ble Mr. Justice Kauser Edappagath
Case No.: Crl Rev. Petition No. 433 of 2022
Advocate for the Appellant: Advocates Renjith B. Marar, Lakshmi N. Kaimal, Arun Poomulli, Aiswarya Thankachan, and Meera Joppan.
Advocate for the Respondent: Advocate Smt T V Neema Public Prosecutor
Read Order @LatestLaws.com
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