KOCHI: The Kerala High Court observed on Monday while releasing a women's rights activist charged in a POCSO case that the fairer sex is frequently denied the right to autonomy over their bodies and that they are ridiculed, discriminated against, ostracised, and prosecuted for making decisions about their bodies and lives. A woman's rights activist named Rehana Fathima was charged with violating several provisions of the POCSO, Juvenile Justice, and Information Technology (IT) Acts after sharing a video in which she was seen standing semi-naked for her young children and letting them paint on her body.
Justice Kauser Edappagath dismissed the 33-year-old activist from the case, stating that it was impossible for anyone to infer from the charges against her that her children were used for any actual or simulated sexual actions, let alone for the purpose of sexual enjoyment. According to the court, she only permitted her children to use her body as a canvas for their artwork.
"A woman's fundamental right to equality and privacy is centred on her autonomy in making decisions about her body. Additionally, it is covered by the guarantees of personal freedom provided by Article 21 of the Constitution, it added. The decision was made in response to Fathima's appeal of a trial court ruling that had rejected her request to have the case dismissed. She had argued in her appeal to the high court that the body painting was intended as a political statement against society's presumption that a woman's naked upper body is sexualized in all situations but a man's upper body is not subject to this presumption.
In agreement with her claims, Justice Edappagath stated that painting a mother's upper body as part of 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". According to the judge, it is "harsh" to characterise such "innocent artistic expression" as using a child in a real or pretend sexual act.
"There is nothing to show that the children were used for pornography. The video contains no indication of sexuality. The court ruled that painting on a person's bare upper body cannot be considered a sexually explicit conduct, whether the individual is a male or a woman. According to the prosecution, Fathima displayed her upper body in the video, making it obscene and indecent. The court rejected the argument by stating that "nudity and obscenity are not always synonymous." It said, "It is erroneous to categorise nudity as fundamentally vulgar, much alone indecent or immoral.
The court emphasised that murals, statues, and works of art depicting deities in semi-nude in old temples and different public locations all over the country are deemed to be "holy" and that lower caste women in Kerala formerly fought for the right to cover their breasts. It went on to say that while men's upper body exposure in nude form is never viewed as offensive or sexualizing, "a female body is not treated in the same way."
"Everyone has a right to the autonomy of his or her body; this right is gender-neutral. "The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives," the court said. "But we frequently find that this right is curtailed or denied to the fairer sex." The court added that some people view female nudity as taboo and only appropriate for sensual purposes, and that this double standard in society was what motivated Fathima to distribute the film.
"Sex and nudity shouldn't be related. The mere perception of a woman's bare upper torso should not automatically be interpreted as sexual. In the same way, showing a woman's naked body cannot be characterised as vulgar, indecent, or sexually explicit in and of itself, Justice Edappagath remarked. Additionally, the prosecution had argued that the video violated moral standards held by the general public and would morally corrupt viewers. Additionally, the court rejected this argument by stating that social morality is essentially arbitrary. "Criminality and morality do not go hand in hand. It stated that not everything that is ethically wrong is also unlawful.
The court emphasised that although many people view adultery, consenting same-sex relationships, and live-in relationships as reprehensible, they are all legal activities. "The establishment of a crime and the pursuit of an individual cannot be motivated by society's morals or the opinions of some people. It stated that a behaviour is acceptable if it does not contravene any national laws. The court also remarked that it was clear from the children of Fathima's comments that their mother loved and looked for them.
"One of the earth's most sombre and devout connections is that between a mother and her child. The relationship between a mother and her child is the strongest and most true relationship there is.There is no doubt that the prosecution of the petitioner (Fathima) will result in torture and negatively impact the kids. Therefore, the prosecution cannot be allowed to continue in the best interest of the victims as well, it stated.
Justice Edappagath said that the lower court completely overlooked the context in which the video was released and the message it had given to the public at large. "There is no sufficient ground for proceeding against the petitioner. The impugned order is, thus, set aside and the petitioner is discharged," the high court said.
Based on a complaint made by Cyberdom, the cyber division of Kerala police, against her for sharing the "Body and Politics" video on social media, Kochi city police opened an investigation against her under various provisions of the Protection of Children from Sexual Offences (POCSO) Act and the IT Act. On the basis of a complaint made by BJP OBC Morcha leader A V Arun Prakash, the woman was previously also detained by police in the Pathanamthitta district under the Information Technology Act and the Juvenile Justice Act.
The Pathanamthitta district police chief was also asked for a report on the incident by the Kerala State Commission for Protection of Child Rights, which also gave the police the go-ahead to file a case against the woman under several POCSO Act provisions. After the Supreme Court let women of menstrual age to do so, Fathima tried to enter the Lord Ayyappa shrine in Sabarimala and was attacked by some people for it.
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