The Supreme Court on Friday took a dim view of a Kerala activist-mother who had allowed her minor children to paint on her semi-nude body, as prima facie as an act of child pornography and denied her anticipatory bail. The mother Rehana Fatima, who has maintained that children needed to be taught to respect women’s bodies, had made a video of her children and circulated it online.
Kerala police had charged her under various sections of child pornography and obscenity, a charge she denied. ..
The Kerala High Court had earlier denied her plea for anticipatory bail. She had appealed to the top court against this. Her plea came up before a bench led by Justice Arun Mishra. Her case was argued by senior advocate Gopal Shankarnarayan.
At the outset, Justice Mishra said that he was baffled by the case which had landed before his bench towards the end of his tenure as a judge. On merits, he demanded to know how a mother could allow her children to paint on her body. “What will you do to your children’s morals? Why are you doing this nonsense?”
Shankaranarayan argued that the mother had taken a consistent position that while men walk around semi-naked, no eyebrows are raised, but a woman walking around similarly is treated as a lascivious and obscene.
Controversial Kerala activist Rehana Fathima, who was booked over a video showing her children painting on her semi-nude body, has approached the Supreme Court challenging the Kerala High Court’s judgment which refused her pre-arrest bail.
The High Court had prima facie observed that the video amounted to obscene representation of children for ‘sexual gratification’, attracting offences under Section 13 of the Protection of Children from Sexual Offences Act (POCSO) and Section 67 B of Information Technology Act (IT Act).
Questioning the reasoning of the High Court, she argues that nudity per se cannot be treated as obscenity. In this regard, reliance is placed on the SC precedent in Aveek Sarkar vs State of West Bengal, which held that only sex-related materials “exciting lustful thoughts” can be regarded as obscene.
She states that the video was made and uploaded to spread a message to “normalize the female form of body for her children and to not allow distorted ideas of sexualization pervade their minds”.
“The petitioner, while being semi-nude, has allowed her body to be used as a canvas by her children to pain on, and there can probably be nobody except a pervert, who would be aroused to sexual desire by seeing the nature of the work”, the petition states.
Challenging the invocation of Section 13 of POCSO by the HC, the petition stated :
“There has been no indecent or obscene representation of a child in this case – in fact, they merely paint in an expressionless manner as children are wont to do. It is therefore impossible to conclude that any child was used for sexual gratification”.
Her application states that the following issues arise in the matter in the context of personal liberty under Article 21 of the Constitution :
1.Whether female nudity(even when not visible) per se constitutes obscenity.
2. Whether children painting on their mother’s body can be concluded to be “sexual gratification” and “child abuse” under these stringent laws.