Petitioners: Xxx
Respondents: State of Kerala
Acts involved: Protection of Children from Sexual Offences (POCSO) Act, Information Technology (IT) Act, Juvenile Justice (JJ) Act
Important provisions: Sections 13(b), 14 and 15 of POCSO Act, Sections 67B (d) of the IT Act, Section 75 of the JJ Act
Court: High Court of Kerala
Bench: Dr. Justice Kauser Edappagath
Judgement date: June 5, 2022
FACTS
- The petitioner is a Keralite activist, published a video on her social media in which her minor children painted on her naked upper body.
- A message explained the video as a form for protesting against sexualisation of the female body and challenging patriarchal norms.
- The main objective was to spread awareness about bodily autonomy and desexualize the concept of the female body.
- Fathima and her children both affirmed that neither there was anything sexual in the video nor was it posted with sexual intent.
- The police filed a First Information Report (FIR) against Fathima for several crimes covered by the Protection of Children from Sexual Offences (POCSO) Act, the Information Technology (IT) Act, and the Juvenile Justice (JJ) Act.
- A petition for review before the Kerala High Court was initiated after the trial court denied her release from the charges.
ISSUES RAISED
- Whether the video constitutes an offense under Sections 13(b) and 14 of the POCSO Act, 2012
- Whether the act of allowing her children to paint on her naked upper body was done with ‘sexual intent’ as defined under Section 7 of the POCSO Act.
- Whether the video violates public decency and morality as per Article 19(2) of the Constitution of India.
CONTENTION
Arguments made by the Petitioner
- Fathima contended that the video was an artistic and political expression meant to challenge the social norms that sexualize the female body.
- She said there was no ‘sexual intent’ under POCSO, and all her acts were intended to only educate, empower, and sensitize her children and the public on body positivity and autonomy.
- Before the HC, Fathima argued that she believes there needs to be openness on the body and body parts discussion, there is nothing to be hidden within and outside the family about the same. As a result of this, children will mature to view the body as a different medium altogether rather than see it as just a sexual tool.
Arguments made by the Prosecution
- The prosecution contended that the video was contrary to public morality and had the potential to corrupt the morals of those viewing the clip.
- They also contended that the video constituted an offense under the POCSO Act, the IT Act, and the JJ Act, since it involved a minor and depicted nudity, which they claimed was obscene and indecent.
- They, however, claimed that freedom of speech and expression under Article 19(1)(a) of the Constitution is not unbridled but is subject to limitations imposed by the said article in the interest of public decency and morals.
RATIONALE
The court reviewed several legal justifications:
- Nudity: The court determined that nudity by itself does not automatically imply obscenity or sexual intent. The situation in which nudity is shown must be thoroughly evaluated. The court looked at previous cases that have concluded that in the context of art or protest, nudity by itself does not qualify as obscenity
- Artistic and Political Expression: Fathima had contended that the video in question, “formed a part of artistic and political expression. This contention was accepted by the Court because it was established that the sole intent behind the video was to challenge the patriarchy-conditioned norms of society when it came to the sexualization of the female body and to promote body positivity. There is a finding on record by the court that there was no intention to derive sexual pleasure or to gratify any viewer sexually.
- ‘Sexual Intent’ under the POCSO Act: According to the court has said is that the ‘sexual intent’ under Sec 7 of the POCSO Act contemplates acts done with ‘an intention to sexually assault or exploit a child’. The court held that the act of Fathima was devoid of any such intention. It laid emphasis on the fact that the term ‘sexual intent’ cannot be interpreted in a narrow manner and has to be judged in the light of facts and circumstances of a case.
- Freedom of Expression: Invoking Article 19(1)(a) of the Constitution, which ensures freedom of speech and expression, the court maintained that although this right is subject to reasonable restrictions, these restrictions must not be imposed arbitrarily or excessively. The court determined that her video, meant as a social and political statement, was encompassed within the realm of protected expression.
- The court observed that in the case of Pulikali in Thrissur district of Kerala, it is a regular practice to draw paintings all over the male body. It is also part of the Theyyam and other rituals in the temple. The male artists are painted all over their body. Their bodies, showing six-packs and biceps, are paraded in many ways. People go about shirtless and never do these practices get considered inappropriate or offensive. .
- Justice Edappagath also added that the naked body of a man can be viewed as something usual and it is not sexualized. For it, no similar respect is shown to the bare body of a woman. The bare body of a woman is overly sexualized and has been viewed by many as an object of desire. Another way through which the nudity of women is seen is that a naked woman body is thought to be only meant for sexual purposes, and that might be the reason it has been taboo.
- According to the honourable court it would be harsh to term this innocent artistic expression as ‘usage of a child in real or simulated sexual act’.
DEFECTS OF LAW
- Defining Ambiguity in the context of ‘Sexual Intent’: The court has acknowledged the fact that the term ‘sexual intent’ is undefined in the POCSO Act and thus open to misinterpretation. Therefore, the subjectivity attained by the term may lead to different applications of the law.
- Balancing Artistic Expression and Morality: The judgment emphasized the need for better nuance on ground of finding the proper balancing of the right to artistic as well as political expression with concerns to public decency and morality. It calls for evolving law so that changes in values and norms are reflected. As per the change, it shall be done without antagonizing the safeguarding of children and other vulnerable groups.
INFERENCE
The court inferred the following:
- Firstly, the video did not attract the offenses under Sections 13(b) and 14 of the POCSO Act due to the lack of ‘sexual intent’.
- Secondly, Fathima’s acts were a legitimate exercise of her right to freedom of expression to challenge the norms of society.
- Thirdly, obscenity and tests of public morality need adaptation of legal standards to align with contemporary society particularly in matters involving artistic and political expression.
- Finally, the court set aside charges against Fathima. This example highlights the factors that influence the definition of obscenity and the necessity for legal frameworks to adapt to changing societal norms, particularly concerning differing views on bodily freedom and artistic freedom.
Case commentary by Anusree Nambiar
O P Jindal Global University