‘Nudity not always linked to obscenity’: High Court discharges Kerala woman

In a relief for a women's right activist, Rehana Fathima, who was facing charges under a POCSO (Protection of Children from Sexual Offences Act) case for allowing her children paint her semi-nude body, the Kerala High Court Monday ruled that her act cannot be characterised as a real or simulated sexual act and said that the society’s default view that the naked upper body of the female is sexualised in all contexts is unfair and discriminatory.

"The right of a woman to make autonomous decisions about her body is at the very core of her fundamental right to equality and privacy. It also falls within the realm of personal liberty guaranteed by Article 21 of the Constitution," the court said.

The case

Fathima was charged under POCSO and Juvenile Justice and the Information Technology (IT) Acts for circulating a video, in which her minor children were seen painting on her semi-nude body. Justice Kauser Edappagath discharged the 33-year-old activist from the case, citing that it was "harsh" to term such an "innocent artistic expression" as a usage of a child in a real or simulated sexual act and that it did not amount to child pornography.

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The High Court’s ruling came on Fathima's appeal seeking dismissal of the ongoing case after a trial court rejected it. In her appeal, Fathima contended that the act was meant as a political statement since the naked upper body of the women is sexualised in all contexts, while it is not the case for men. The court agreed with her contention and noted that Fathima’s intention behind the circulation of the video was to “expose this double standard prevailing in society."

The court’s ruling

The prosecution had termed the act as “obscene” and “indecent” as Fathima had exposed her upper body in the video and claimed that it was against the public notions of morality. However, rejecting the contention, the court said that "nudity and obscenity are not always synonymous". "It is wrong to classify nudity as essentially obscene or even indecent or immoral," it further said.

Justice Edappagath said it could not be said that the act was done for the purpose of “sexual gratification or with sexual intent”. “There is nothing to show that the children were used for pornography. There is no hint of sexuality in the video. Painting on the naked upper body of a person, whether a man or a woman, cannot be stated to be a sexually explicit act," the court said.

Discriminatory practice

The court observed that all individuals were entitled to the autonomy of their body, irrespective of their gender but women are often devoid of this right. "Women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives…but nudity should not be tied to sex,” it said.

The court rejected the prosecution's morality argument, stating that “morality and criminality are not coextensive. What is considered as morally wrong is not necessarily legally wrong.” The court also noted from the statements given by the petitioner’s children that they are loved and cared for by their mother and Fathima’s prosecution would have adverse effects on them.

The case was initiated against Fathima for her video titled "Body and Politics" on social media, following a report filed by Cyberdom, the cyber wing of Kerala police under the various sections of the POCSO and IT Act. Earlier, she was also booked by the police on the complaint lodged by the Bharatiya Janata Party OBC Morcha leader A V Arun Prakash.