Nudity and obscenity not always synonymous: Kerala high court

KOCHI: The Kerala HC said Monday that “nudity and obscenity are not always synonymous”, as it discharged a suit against women’s rights activist Rehana Fathima, who’s facing multiple charges for uploading a video in 2020 of her young son and daughter painting on her bare torso.
Justice K Edappagath said painting on a mother’s upper body by her own children as an art project “cannot be characterised as a real or simulated sexual act…” It was “harsh” to label the “innocent artistic expression” an act of using a child for sexual gratification, he said.
The 33-year-old Fathima was facing charges under various provisions of the Posco Act as well as juvenile justice and information technology laws for uploading the video on social media.
The court said the right of autonomy over one’s body is often denied to women and they are bullied, discriminated against, isolated and persecuted for making choices about their body and life. “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,” the judge said.
A trial court had earlier dismissed Fathima’s appeal against the case. She told the HC that the body painting was a statement against society’s default view that the naked torso of a female is sexualised in all contexts, but men can walk bare-chested. The HC agreed with her, and said, “It is wrong to classify nudity as essentially obscene or even indecent or immoral.”
The court pointed out that there were murals, statues and art of deities that are semi-nude in ancient temples and various public spaces all over the country and these are considered “holy”.
It said that there were some who consider female nudity taboo and only meant for erotic purposes, and the intention behind the video circulated by Fathima was to “expose this double standard”.
Rejecting the prosecution’s contention that the video was against public notions of morality, the court said notions of social morality are inherently subjective, explaining that adultery, consensual same-sex relations and live-in relationships are considered immoral by many, but they are legal acts.