New Delhi: Questioning patriarchal stereotypes about a woman’s naked body, the Kerala High Court on Monday said “nudity and obscenity are not always synonymous” as it upheld a case filed by a women’s rights activist in the Prevention of Children from Sexual Offenses (POCSO) case. acquitted, which included two of her children. ,
Justice Kausar Edappagath, in his 28-page order, said: “It is wrong to essentially classify nudity as obscene or even indecent or immoral… while rarely questioning the autonomy of a male body.” Women’s autonomy is under constant threat from the patriarchal structure… Female nudity is seen as a taboo because a naked female body is only for erotic purposes.
The High Court order came on a revision petition filed by the 33-year-old women’s rights activist, who challenged the May 2022 Ernakulam POCSO court’s order refusing to grant her leave. The woman posted on her social media platforms in June 2020, showing her two minor children – a 14-year-old boy and an 8-year-old girl – painting on her semi-nude torso.
The video sparked “massive outrage”, leading the Ernakulam police to charge her with a section of the Indian Penal Code (IPC) and obscenity under various sections of the POCSO Act, 2012, the Information Technology Act, 2000, and the Juvenile Justice (Care) Act. FIR lodged for and Protection of Children) Act, 2015.
The activist posted the “controversial” video with the hashtag “body art and politics”.
The judge observed that painting on the naked upper body of a person, whether male or female, cannot be said to be a sexually explicit act, especially in this case, as the message accompanying the video clearly mentioned It has been suggested that body painting was done as an “artistic form of protest against the sexual depiction of a woman’s naked upper body”.
The judge said the social worker’s video aimed to highlight the double standard prevailing in the society and to educate her children to consider the naked body as “more than just a sexual object”.
“Here is a case where a mother tried to challenge patriarchal stereotypes and spread a message that there need not be anything sexual or offensive about the naked female body, in order to encourage her children to admire her semi-naked body. could be exposed, she was charged with criminal prosecution. that she exploited her own children for sexual gratification. as a body art project for a mother with her children who with control of the story started, it becomes a ‘criminal act’,” the judge said.
The judge concluded that the video was an “innocent artistic expression” of bodily autonomy and women’s emancipation, which lie at the core of a woman’s fundamental right to equality, privacy and personal liberty.
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Offenses under POCSO, IT and JJ Acts
The woman was booked under sections 10 r/w 9(n), 14 r/w 13(b) and 15 of the POCSO Act.
An offense under section 9(n) r/w 10 is made out when a person, being a relative of the child, commits sexual assault on the child.
Sexual assault under POCSO is when a person touches the vagina, penis, anus or breast of a child with sexual intent, or causes a child to touch the vagina, penis, anus or breast of that person or any other person with sexual intent. forces and without penetration.
Section 14 r/w 13(b) is applicable when a person uses (with or without penetration) a child in any form of media for the purpose of sexual gratification.
And, section 15 deals with punishment for storage of pornographic material involving a child.
Section 67B(a), (b), (c) of the IT Act, under which the woman was booked, criminalises the publication or transmission of material depicting children in sexually explicit acts.
The woman was also booked under section 75 of the JJ Act. It is invoked when a person assaults, abandons, abuses, exposes or willfully neglects a child in a way that is likely to cause mental or physical suffering to the juvenile.
In August 2020, he surrendered after the Supreme Court denied him anticipatory bail. However, the Ernakulam POCSO court granted him bail after nine days.
While rejecting his anticipatory bail plea, an SC bench headed by Justice Arun Mishra – who now heads the National Human Rights Commission (NHRC) – took strong objection to the video.
He observed: “You may be an activist, but why do you do all this? What kind of nonsense is this? What impression will your children have about the country’s culture?”
However, in his judgment on Monday, Justice Edappagath spoke of frescoes, statues, half-nude idols on ancient temples in the country and women belonging to “certain lower castes” who once fought for the right to “cover their breasts”. Was
“Such nude sculptures and paintings are considered freely available art in public places, even sacred. Even though the idols of all the gods and goddesses are bare-chested, when one prays in a temple, The feeling is not of sensuality but of divinity,” he said.
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‘Morally wrong is not necessarily legally wrong’
The judge rejected the state’s argument that the video was, prima facie, a sexually explicit act involving a child.
He said: “Every parent does their best to teach their children everything they can about life and every parent has the right to raise their children the way they want.”
The state further argued that the veracity or falsity of the allegations are questions of fact and matters of evidence for which a trial should be conducted, which was also rejected by the court. The judge said: “Painting on the upper body of a mother by her own children in the form of an art project cannot be characterized as a real or simulated sexual act, nor can it be said to be a form of sexual gratification”. Was done for the purpose of or sexual intent.
The judge watched the two-minute video in open court and saw the accompanying message, as well as her son’s “extremely professional concentration”, drawing the image of a phoenix on the upper part of her body from between the breasts and around both nipples. And flowers. The girl was seen painting on the papers.
Through the video, the judge concluded, the woman was merely propagating her views on the default sexualization of the female naked body, which was an inherent part of the freedom of free speech and expression under Article 19.
The HC concluded, “The expression of opinion, without obscenity or obscenity, shall not be a cause of action for criminal proceedings.”
The woman, through her naked body, was making a point against a “controlling, sexually frustrated society”, the judge said.
The woman’s past work as an activist came for appreciation by the court, as the latter had a “long history of battling patriarchy and hyper-sexualisation of women in society”, including the “Kiss of Love” movement in 2014 against moral policing. accepted. ,
Before the court, the woman activist’s counsel Ranjit B Marar attacked the POCSO sections mentioned in the FIR, adding that the documents on record along with the police charge sheet show that no offense is made out against her.
The judge accepted Marar’s plea as he referred to the statement given by the woman’s children to the police. Both her children denied sexual abuse by their mother. Rather, the boy’s statement reflected a “fascination for body painting”. The HC said it was out of “her childhood fascination” that she requested her mother to paint on her body, to which she agreed.
Since the court observed that “there is nothing on record to even remotely suggest that the petitioner” committed the alleged act with any “sexual intent” or used children for “pornography”, it invoked the provisions of POCSO Offenses under not established.
Consequently, the charge under the IT Act also did not apply, the court concluded.
On the point whether notions of social morality can be criminalized under penal law, the court said: “What is regarded as morally wrong may not necessarily be legally wrong.”
“The perception of social morality is inherently subjective. Morality and criminality are not co-extensive,” it said, citing two Supreme Court judgments of 2018 — Joseph Shine, which decriminalized adultery, and Navtej Singh Johar, which struck down the same Legalized consensual sex relationships.
Two acts – adultery and homosexuality – are not crimes, even though the two relationships “may continue to be scrutinized on moral grounds by some as much as they wish.”
(Editing by Anumeha Saxena)
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