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“Nudity and Obscenity are not Always Synonymous:” Kerala High Court

“Nudity and Obscenity are not Always Synonymous:” Kerala High Court

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NEW DELHI, June 5: The Kerala High Court on Monday held that “nudity and obscenity are not always synonymous” and discharged a women’s right activist in a POCSO case after observing “It is wrong to classify nudity as essentially obscene or even indecent or immoral.”

The right of autonomy over one’s body is often denied to the fairer sex and they are bullied, discriminated against, isolated and persecuted for making choices about their bodies and lives, the High Court observed. The court pointed out that women of lower castes in Kerala had once fought for the right to cover their breasts and that there were murals, statues and art of deities in the semi-nude in ancient temples and various public spaces all over the country and these are considered as “holy.”

It further said nude display of the upper body of men was never considered obscene or indecent and was not sexualised, but “a female body is not treated in the same way.” “Every individual is entitled to the autonomy of his/her body – this is not selective on gender. But we often find this right is diluted or denied to the fairer sex. “The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives,” the court said.

Rehana Fathima, a woman’s right activist, was facing charges under various provisions of the POCSO, Juvenile Justice and the Information Technology (IT) Acts for circulating a video in which she was seen posing semi-nude for her minor children, allowing them to paint on the upper part of her body.

Discharging her from the case, Justice Kauser Edappagath said from the allegations against the 33-year-old activist, it was not possible for anyone to infer that her children were used for any real or simulated sexual acts and that too for sexual gratification. The court said she only allowed her body to be used as a canvas for her children to paint on.

“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,” it said. The order came on Fathima’s appeal against a trial court decision dismissing her plea to be discharged from the case.

In her appeal in the high court, she had asserted that the body painting was meant as a political statement against the default view of society that the naked upper body of the female is sexualised in all contexts, whereas the naked male upper body is not treated to this default sexualisation.

Agreeing with her contentions, Justice Edappagath said  painting on the upper body of a mother by her own children as an art project “cannot be characterised as a real or simulated sexual act nor can it be said that the same was done for the purpose of sexual gratification or with sexual intent.” The judge said it was “harsh” to term such an “innocent artistic expression” as a usage of a child in a real or simulated sexual act.

“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. The prosecution had claimed that Fathima had exposed her upper body in the video and hence, it was obscene and indecent.

The court further said there were some who considered female nudity as taboo and only meant for erotic purposes and the intention behind the video circulated by Fathima was to “expose this double standard prevailing in society.” Nudity should not be tied to sex. The mere sight of the naked upper body of the woman should not be deemed to be sexual by default. So also, the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent, or sexually explicit,” Justice Edappagath said.

(Manas Dasgupta)

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