Explained | Rehana Fathima case: Obscenity regulations and the policing of feminine sexuality


In June 2020, activist Rehana Fathima posted a video appearing her 14-year-old son portray a phoenix on her semi-nude torso whilst her eight-year-old daughter sat beside her portray on paper.

The video, uploaded on Fb and YouTube with the hashtag ‘Frame, Artwork and Politics,’ was once captioned, “No kid who has observed his personal mom’s nakedness and frame can abuse the feminine frame. Subsequently, vaccines towards false perceptions about ladies’s frame and sexuality will have to be initiated from house.”

This reputedly risk free video induced standard outrage on social media resulting in a deluge of feedback accusing Fathima of subjecting her kids to an obscene and vulgar act.

More than one FIRs have been filed towards Fathima below quite a lot of provisions of the Coverage of Youngsters from Sexual Offences Act, 2012 (POCSO), the Juvenile Justice Act, 2015 (JJ Act), and the Data Generation Act, 2000 (IT Act). Whilst her preliminary plea for anticipatory bail was once rejected, she was once later granted conditional bail by means of a different courtroom.

On June 5, 2023, the Kerala Top Courtroom disregarded all fees towards her, underscoring that “the mere sight of the bare higher frame of the lady will have to no longer be deemed to be sexual by means of default.” The courtroom highlighted that what’s obscene, indecent, or sexually specific below the regulation may also be made up our minds “simplest within the context” of the depiction. 

Even though Article 19 of the Charter promises positive rights referring to freedom of speech and expression, cheap restrictions may also be imposed on their workout within the passion of ‘decency and morality’. A number of regulations embrace this restriction within the type of obscenity offences.

One distinguished grievance of such obscenity regulations is that they’re openly paternalistic and penalise ladies for exercising physically autonomy and sexuality. Consistent with prison students Indira Jaising and Andrea Wolfe, obscenity regulations continue in step with the pursuits of male energy, which it gowns within the supposedly gender-neutral language of ‘excellent’ and ‘evil’.

Fathima on her motivation

Explaining what brought on her to make one of these video, Fathima says, “I sought after to reveal the double requirements prevailing in society in regards to the default sexualisation of the feminine frame. Males can roam round nearly bare in all places however ladies are puzzled even for the slightest display of pores and skin. I sought after to show my kids {that a} girl’s frame should be revered and no longer simply sexualised.”

“When the case was once filed towards me, my kids have been very fearful, particularly my son. He was once below the impact that I needed to cross to prison as a result of him. But if the decision of the Kerala Top Courtroom was once in spite of everything pronounced, each my kids have been elated. Neither of my kids felt that they have been doing anything else incorrect. Neither of my kids have been seeing my frame for the primary time — I’m their mom, there is not any sexuality. If truth be told, my son has a knack for portray and was once excited to take a look at out frame artwork for the primary time,” she says sharing what her kids needed to bear within the procedure.

Fathima additionally wired that there’s an pressing want to sensitise the judiciary referring to such problems.

“All over the listening to of my anticipatory bail software within the POCSO case, the pass judgement on discussed how in step with the Manusmriti and the Quran it’s unthinkable for a mom to behave like this. I used to be stunned to listen to his feedback.”Rehana Fathima Activist

This may be no longer the primary time that Fathima has participated in creative activism. She discussed how she took section within the Puli Kali competition in Thrissur, Kerala again in 2016. On this predominantly male-dominated competition, other people painted as tigers dance to the beat of drums and take out processions in the course of the town. She sought after to accomplish in an area ruled by means of males — a previous example of activism that even the courtroom took notice of within the verdict.

Mentioning that her purpose was once to normalise the feminine frame to forestall distorted concepts of sexualisation within the minds of her kids, she explains ‘we will have to no longer carry our kids with the mindset {that a} girl’s frame is simplest an object for want or sexual gratification.’

She additionally emphasized that the use of artwork as an tool for activism and resistance is quite common in international international locations — popularly referred to as protest artwork.

Gender stereotypes and law of feminine sexuality

Psychologist and social activist Ratnaboli Ray highlighted the social conditioning that ends up in the policing of feminine sexuality because of present patriachal energy constructions.

“This can be a male-dominated society with patriarchal values. It’s been traditionally observed how ladies’s our bodies had been commodified. There may be an assumption that ladies’s our bodies are for want on my own and can’t be used for political protest.”Ratnaboli Ray Psychologist and social activist

Drawing from her paintings within the box of psychological well being, Ray provides, ‘Many ladies with psychological sickness who would not have a circle of relatives to return to believe their our bodies to be their house. We need to take a look at ladies’s our bodies another way. Nudity in step with se can’t be equated with sexuality.’

Ray additionally identified that whilst judgments do replicate the values of the society, extra continuously than no longer they form common opinion and are aspirational in nature.

What did the courtroom rule?

Obscenity to be considered in context

On the outset, Justice Dr. Kauser Edappagath underscored the significance of viewing the video within the context of Fathima’s higher message and noticed, ‘The mere sight of the bare higher frame of the lady will have to no longer be deemed to be sexual by means of default. So additionally, the depiction of the bare frame of a lady can’t in step with se be termed to be obscene, indecent or sexually specific.’

What constitutes obscenity below the regulation should be made up our minds ‘simplest within the context’ of the depiction— which on this case was once an try to make a political expression.

The courtroom emphasized that whilst nudity can represent obscenity, the 2 don’t seem to be synonymous. Bolstering the purpose that nudity should be considered within the context wherein it’s positioned, the Courtroom famous that there are work of art, statues, and deities displayed within the semi-nude in historic temples in every single place the rustic that are regarded as artwork or even holy.

Double requirements and physically autonomy

Agreeing with Fathima, the courtroom stated that double requirements exist in society and accordingly noticed, ‘We continuously to find males strolling round with out dressed in shirts. However those acts are by no means regarded as to be obscene or indecent. When the half-nude frame of a person is conceived as standard and no longer sexualised, a feminine frame isn’t handled in the similar approach.’

The courtroom additional highlighted that whilst the autonomy of the male frame is seldom puzzled, the physically autonomy and company of girls is below consistent danger because of the present patriarchal construction. .

On this regard, a reference was once additionally made to the Ideally suited Courtroom’s judgment in Justice Okay.S. Puttaswamy (Retd) v. Union of India (2018), through which the Courtroom underscored that the fitting of a lady to make independent selections about her frame is on the very core of her elementary proper to equality and privateness.

Morality and criminal activity no longer coextensive

‘The notions of social morality are inherently subjective. Morality and criminal activity don’t seem to be coextensive’, the courtroom noticed, maintaining that an motion that can be regarded as morally incorrect would possibly not essentially be legally incorrect. On this regard, the courtroom referred to previous judgments of the Ideally suited Courtroom hanging down Phase 497 (adultery) and studying down Phase 377 (unnatural offences) of the IPC. It was once identified that even supposing the movements in the past criminalised by means of those provisions might nonetheless be regarded as unethical by means of some, they’re now prison since regulation and morality don’t seem to be identical.

Upholding Fathima’s proper to specific herself in the course of the video in query, the Courtroom underscored that ‘society’s morality and a few other people’s sentiments can’t be the cause of instituting against the law and prosecuting an individual. An motion is permissible if it does no longer violate any of the regulations of the land.’

No sexual intent

The Courtroom additionally dominated that the very important factor of ‘sexual intent’ in POCSO offences was once lacking on this case and that there’s not anything incorrect with a mom permitting her frame for use as a canvas by means of her kids in a bid to sensitize them to the concept that of viewing nude our bodies as standard.

Pushing aside the POCSO fees, the courtroom dominated — “Portray at the higher frame of a mom by means of her personal kids as an artwork mission can’t be characterised as an actual or simulated sexual act, nor can it’s stated that the similar was once executed for the aim of sexual gratification or with sexual intent. To time period this blameless creative expression to be ‘utilization of a kid in the actual or simulated sexual act’ is harsh.”

Lengthy historical past of activism

Particularly, the courtroom stated that the video will have to be observed within the context of Fathima’s lengthy historical past of combating patriarchy and hyper-sexualisation of girls in society. In 2018, Fathima tried to succeed in the sanctum sanctorum of the Sabarimala temple after the Ideally suited Courtroom dominated towards the follow of permitting access simplest to girls of non-reproductive ages. Alternatively, her strive was once futile, in spite of police coverage, since combatants stopped her by means of forming a human protect comprising kids.

Fathima was once additionally an energetic player within the ‘Kiss of Love’ protest in 2014, a motion towards ethical policing. Fathima’s autobiography Frame, Battle and Presence additionally main points quite a lot of circumstances of her difficult patriarchal hierarchies which search to keep watch over ladies’s our bodies.   

The obscenity check and prior rulings

Phase 292 of the IPC stipulates that any content material is deemed obscene whether it is lascivious or appeals to the prurient passion, or if its impact has a tendency to corrupt and corrupt individuals prone to learn, see or pay attention the content material. This provision prohibits the sale or newsletter of any obscene pamphlet, ebook, paper, portray, and different such fabrics.

And not using a complete definition in regulation, what is regarded as as obscene in step with the Indian courts has modified and advanced through the years. Up till 2014, courts in India have been depending at the Victorian-era ‘Hicklin check’ to come to a decision what’s obscene and what isn’t. The Hicklin check, formulated in English regulation following Regina v. Hicklin (1868), states that if an issue had the “tendency … to corrupt and corrupt the ones whose minds are open to such immoral influences” and be suggestive of “ideas of [the] maximum impure and libidinous persona,” it will be regarded as obscene. 

Therefore, the check was once followed by means of Indian courts and affirmed in instances similar to Ranjit D. Udeshi v. State of Maharashtra (1964), through which Udeshi, a bookseller, appealed his conviction below Phase 292 for promoting unabridged copies of D. H. Lawrence’s Woman Chatterley’s Lover. The Ideally suited Courtroom held that except “the obscenity has a ‘preponderating social objective or benefit,’ it will quantity to interesting to the ‘carnal aspect of human nature’” and subsequently no longer benefit from the constitutional coverage of unfastened speech and expression.

Within the seminal case Bobby Artwork World v. Om Friend Singh Hoon (1996), bearing on the discharge of the movie Bandit Queen, the Ideally suited Courtroom rejected the rivalry that the scene depicting the rape of Phoolan Devi amounted to obscenity, because it was once executed to underscore a social fact. The Courtroom held that the item of revealing the sufferer’s nudity was once to not arouse prurient emotions however revulsion for the culprit.

In 2014, the Ideally suited Courtroom moved clear of the Hicklin check and as a substitute implemented the ‘group requirements check’ in Aveek Sarkar v. State of Bengal, which was once in regards to the newsletter of a semi-nude image of Boris Becker and his fiancee. The courtroom asserted that obscenity “needs to be judged from the standpoint of a median particular person, by means of making use of recent group requirements” and {that a} nude image can’t be known as obscene except it has the tendency to arouse the sensation of an overt sexual want. It then concluded that the image isn’t obscene for the reason that message it “needs to put across is that the colour of pores and skin issues little and love champions over color”.

Misuse of regulation and the best way ahead

Elucidating how the judicial interpretation of obscenity has advanced over the years, Suggest Bharat Chugh says, ‘In the previous couple of many years our courts have realised that you can’t take a look at obscenity in an overly strict sense. It’s important to take a look at the paintings in context, the creative benefit, and extra importantly at what the present group requirements are. There may be a unfastened speech part concerned so courts had been cautious of labelling one thing as obscenity, particularly in instances of nudity.’

He added that the contours of obscenity should be extra strictly outlined in regulation protecting in thoughts present societal realities in an effort to curb its misuse. He highlighted that obscenity regulations are continuously indiscriminately invoked to stifle unfastened speech.

“Such regulations are continuously misused and invoked in instances through which you might be difficult other energy constructions if it is patriarchy or you might be pronouncing one thing this is inconvenient to the politics of the day. ”Bharat Chug Suggest

Chugh emphasized that the purpose of such regulations will have to be to penalise the exploitation of minors, similar to kid pornography instances, as a substitute of regulating consensual acts of adults.

‘This can be a very modern verdict. Now not each example of nudity because the courtroom rightly says constitutes obscenity. On this case, invoking provisions of POCSO was once no longer warranted in any respect. If implemented as it should be POCSO itself is enough to cope with all instances of exploitation of minors — you don’t require every other obscenity regulation,’ Chugh added.

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