Case deals with viral video made by Kerala activist. Judge Kauser Edappagath said she meant to educate her children to treat nude bodies as more than ‘just sexual objects only’.
Raising questions over patriarchal stereotypes regarding a woman’s nude body, the Kerala High Court Monday said that “nudity and obscenity are not always synonymous” as it discharged a women’s rights activist in a Protection of Children from Sexual Offences (POCSO) case involving her two kids.
Justice Kauser Edappagath in his 28-page order said: “It is wrong to classify nudity as essentially obscene or even indecent or immoral… While the autonomy of a male body is seldom questioned, the autonomy of women is under constant threat of patriarchal structure… Female nudity is seen as a taboo because a naked female body is only meant for erotic purposes.”
The HC order came on a revision petition filed by the 33-year-old women’s rights activist who challenged the May 2022 Ernakulam POCSO court order refusing to discharge her. The woman posted videos on her social media platforms in June 2020 which showed her two minor children — 14-year-old boy and 8-year-old girl — painting on her semi-nude torso.
The video sparked “massive outrage”, leading to Ernakulam police registering an FIR against her for obscenity under a section of Indian Penal Code (IPC) and under various sections of POCSO Act, 2012, Information Technology Act, 2000, and Juvenile Justice (Care and Protection of Children) Act, 2015.
The activist had posted the “controversial” video with the hashtag “Body Art and Politics”.
The judge held that painting on the naked upper body of a person, whether a man or a woman, cannot be stated to be a sexually explicit act, particularly in the case at hand, since the message that accompanied the video clearly mentioned that body painting was done as an “artistic form of protest against sexualised portrayal of the naked upper body of a woman”.
The social activist’s video, the judge said, intended to expose this double standard prevailing in society and also educate her children to consider a nude body as “more than just a sexual object”.
“Here is a case where a mother who tried to challenge patriarchal stereotypes and spread a message that there needs to be nothing sexual or offensive about the naked female body by letting her kids be exposed to her semi-nude body was saddled with criminal prosecution alleging that she exploited her own children for sexual gratification. What started as a body art project for a mother with her kids with control of the narrative turned out to be a ‘criminal act’,” the judge noted.
The video, the judge concluded, was an “innocent artistic expression” of bodily autonomy and emancipation of women, which is at the very core of a woman’s fundamental right to equality, privacy, and personal liberty.
Offences 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.
The offence under Section 9(n) r/w 10 is attracted 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 the child with sexual intent, or makes the child touch the vagina, penis, anus, or breast of that person or any other person with sexual intent and without penetration.
Section 14 r/w 13 (b) is applicable when a person uses a child in any form of media for the purpose of sexual gratification (with or without penetration).
And, section 15 pertains to punishment for the storage of pornographic material involving the child.
Section 67B (a),(b),(c) of the IT Act under which the woman was booked, criminalises publishing or transmitting of material depicting children in sexually explicit acts.
The woman was also booked under section 75 of the JJ Act. The section is invoked when a person assaults, abandons, abuses, exposes or wilfully neglects a child in a manner that it is likely to cause the juvenile mental or physical suffering.
In August 2020, she surrendered following the Supreme Court’s refusal to give her anticipatory bail. However, the Ernakulam POCSO court granted her a regular bail nine days later.
Rejecting her anticipatory bail plea, the SC bench headed by Justice Arun Mishra — who now heads the National Human Rights Commission (NHRC) — took strong exception to the video.
He had observed: “You might be an activist, but why do you do all these? What kind of nonsense is this? What impression will your kids get about the culture of the country?”
However, in his judgment Monday, Justice Edappagath spoke of murals, statues, semi-nude sculptures dotting ancient temples in the country and women of “certain lower castes” who once fought for the right to “cover their breasts”.
“Such nude sculptures and paintings freely available in public spaces are considered art, even holy. Even though the idols of all Goddesses are bare-chested, when one prays at the temple, the feeling is not of sexual explicitness but of divinity,” he said.