India: Nudity of woman's upper body not always obscenity, says Kerala High Court

India's High Court in Kerala on Monday ruled that the right of autonomy over a person's own body is generally denied to women and that they are bullied, discriminated against, persecuted and isolated for making choices about their bodies as well as their lives. The High Court was discharging a women's rights activist who was facing charges under various provisions of POCSO.

Various charges were levied against activist Rehana Fathima under provisions of the POCSO, Juvenile Justice and the Information Technology (IT) Acts for sharing a video in which she was seen posing semi-nude in front of her minor, permitting them to paint on her naked body.

Justice Kauser Edappagath, discharging the activist from the case, said that the allegations fail to infer that her children were used for any simulated or real sexual acts, especially for sexual gratification.

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The court stated that she only permitted her children to use her body as a canvas to paint on.

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"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 stated.

The order was given by the court after Fathima had filed an appeal against the decision of the trial court.

Protest against society's default view offemale's naked upper body

The activist, in her appeal, stated that the body painting was a political statement against society's default view that the female's naked upper body is sexualised in all contexts, whereas the male's naked upper body is not seen as default sexualisation.

Agreeing with Fathima's contentions, Justice Edappagath stated that children painting on the mother's upper body 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 stated that it was "harsh" to term such an "innocent artistic expression" as a way to use a child in a simulated or real 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 stated.

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Act of exposing upper body 'obscene': prosecution

The prosecution had stated that Fathima's act of exposing her upper body in the video was obscene and indecent.

Refuting the contention of the prosecution, the court said that "nudity and obscenity are not always synonymous".

"It is wrong to classify nudity as essentially obscene or even indecent or immoral," it further added.

"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 stated

"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 stated.

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