Updated: Sep 7, 2020
On the 19th of June, 2020, Kerala activist Rehana Fatima was booked under offenses pertaining to child pornography for uploading a video which showed her minor children painting on her semi-naked body. The video was accompanied by a writeup that explains how society's objectification and censorship of the female body contribute to the ever-rising crime against women. Apprehending arrest, Fatima approached the judiciary, praying for an anticipatory bail which raised two pertinent questions of law:
1) Whether female nudity (even when not visible) constitutes obscenity?
2) Whether children painting on their mother’s body amounts to sexual gratification and child abuse under stringent laws?
However, both the Supreme Court of India and the Kerala High Court rejected the bail and held her to be prima facie guilty of “obscene representation of children for sexual gratification” under Section 13 of the Protection of Children from Sexual Offences Act (POSCO Act from herein).
The legal history behind the term “obscenity” has been controversial in India. Obscenity as an offense was enforced in India during the Victorian era by its British rulers through the Indian Penal Code, 1860 (IPC from herein). When the Raj ended, the Constitution of independent India was passed and adopted, guaranteeing all its citizens the freedom of speech and expression through Article 19(1)(a) therein. However, this freedom was not absolute and Article 19(2) of the Constitution provided the grounds upon which it can be reasonably restricted, and “obscenity” was not such a ground. In 1965, citing the same, the constitutionality of the law prohibiting obscenity under the IPC was challenged before the Supreme Court[i] in 1965. The Court, however, held that though not explicitly mentioned under Article 19(2), obscenity is an integral part of “public decency and morality”, which is a ground for imposing reasonable restrictions upon free-speech and expression.
In the same case, the Court defined obscenity using the Hicklin test i.e. “whether the concerned material has the tendency to deprave and corrupt the people exposed to it” and not only upheld the constitutionality of the law prohibiting obscenity but also paved the way for its potential misuse by defining it in vague and ambiguous terms. The application of the Hicklin test continued in several cases that followed. However, a significant development in the obscenity jurisprudence came about since the year 1996[ii] then the court was posed with the contention in the movie based upon the life of the famous bandit turned parliamentarian, Phoolan Devi. The movie showcased several cruelties being inflicted upon her including the time she was paraded naked in front of an entire village. The complainant accused the moviemakers of obscenity for displaying a naked woman on the cinema screen. The Supreme Court while applying the Hicklin test in this case, concluded that female nudity displayed to highlight the plight women suffer, is protected under Article 19(1)(a) and cannot be punished for obscenity. It also noted that the message behind the display of female nudity was to be considered while deciding obscenity.
The controversial Hicklin test was however explicitly overruled by the Supreme Court in 2014[iii]. The Court held that the only test for obscenity is whether the work taken as a whole tends exciting lustful thoughts from the average person account of the contemporary society’s standards. In the same judgment, it was further stated that the picture of a nude woman is not per se obscene unless it tends to arouse overt sexual desires.
On the perusal of the established jurisprudence, it seems almost bizarre on the part of the judiciary to find Fatima's video prima facie obscene. In doing so, the courts have unintelligently held that the video of a mother’s semi-naked body being painted by her children tends to arouse overt sexual desire from the perspective of an average man in contemporary society. Moreover, attached to the video is a writeup where Fatima states:
“No child who has grown up seeing his mother's nakedness and body can abuse another female body. Therefore, vaccines against the false perceptions and expectations about a woman's body and sexuality should be initiated from home itself.”
Thus, even if believed that the video posted by Fatima is obscene, the writeup clarifies that its purpose was not to excite any desires but to raise awareness regarding sex education and body positivity. Decades ago, while adjudicating the “Phoolan Devi Case”[iv], the Supreme Court had realized that female nudity projected for spreading awareness is protected under Article 19(1)(a) of the Constitution. Thus, the courts finding Fatima’s video prima facie obscene have undone decades of work advancing freedom of speech and expression in India.
The Kerala High Court, while rejecting Fatima’s bail application, held that her actions were not obscene but her posting the video online prima facie constituted the offense. The Court stated:
“As I said earlier, if this painting on the naked body of the petitioner happened inside the four walls of the house of the petitioner, there cannot be any offense. After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video. The petitioner, when shot and uploaded these videos in social media, she also claims that she wants to teach sex education to the children in the society. I cannot accept this stand of the petitioner."
The Courts' reasoning that a video has the ability to become obscene solely because it was available to be viewed by the world at large defies the growing ambit of free-speech jurisprudence. Moreover, instead of relying on the constitutional judgments from its decision, the Court found the video prima facie obscene by citing “the petitioner’s expression while her children painted on her breasts" and highlighting the "concept of a mother in our society”. It is also pertinent to state that the Kerala High Court, in its judgment, quotes the Manusmriti and the Quran to bring out the greater responsibility of a mother (in comparison to the father) towards the upbringing of her children. These texts, while maybe revered by many, should not be relied upon by a constitutional court in its judicial reasoning. Unfortunately, the High Court’s views were recently endorsed by the Supreme Court of India.
It is important to highlight that the observations made by the courts only pertain to an anticipatory bail application. The investigation and adjudication into the alleged obscenity of Fatima's video are still pe