The High Court of Kerala has noted that even though the autonomy of a male body was never questioned, the autonomy of a female body was under constant threat in the society, especially in India.
A case had been registered against a woman under Sections 9, 10,13, 14, 15 of the Protection of Children from Sexual Offences Act, 2012, 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 for shooting a video of her children painting on her semi-nude body.
While discharging the woman from the criminal case, the Single-Judge Bench of Justice Kauser Edappagath noted that women were subjected to isolation, bullying and discrimination for reaching a decision regarding their own bodies and lives, even though the right to make autonomous decisions about one’s own body was an integral part of Article 21 of the Constitution.
He said in many places, women belonging to lower castes had fought a long battle to attain the right to cover their breasts. India has temples where murals, statues and artwork displaying goddess in semi-nude state were kept. Artwork such as paintings and sculptures showcasing semi-nude women were available for free at public places, noted the Judge.
Justice Edappagath observed that terming an artistic work by a child as a sexual act was harsh. He said there was no sexual act or sexual intent, just a mother allowing her children to use her body as canvas to sensitise them with the concept of body nudity and its normalcy.
The High Court pointed out that the message accompanying the video clearly indicated the intention of the woman to spread a message on over-sexualisation of the female body and to challenge the patriarchal norms prevalent in the society.
Justice Edappagath further postulated that it was vital to depict a semi-nude/nude body while capturing a video to protest against excessive sexualisation of women. Such depiction cannot be termed as indecent/obscene.
He said the video in question could not be said to be encouraging mind corruption, deprivation or lasciviousness among reasonable men. In the literal sense, the woman did not even showcase her breasts since they were covered with paint, the High Court pointed out.
It said the pre-requisite for registering a case under Section 9 POCSO (read with Section 10) was for a child to be subjected to sexual assault by a relative. The child had nowhere mentioned about being exploited sexually by his mother. Hence, no such case can be made.
Section 13(b) mentioned using children in any form of media for sexual gratification, for which the punishment prescribed under Section 14 could not be made because the same could not be deduced from the video.
The Single-Judge Bench observed that Section 15 POCSO, which talked about punishment for storing pornographic material, was not attracted in the present case because the child was not naked and also because he participated in the video in a fun, creative and harmless manner.
Since the provisions of the POCSO Act did not have any standing, the provisions of the IT Act will also not have any footing.
The High Court further stated that offence under Section 75 of the JJ Act had also not been committed because neither the children were abandoned nor assaulted. The court added that prosecuting the woman would create a negative impact on her children.
It said since the nude body of a woman cannot be regarded as a sexual act by default hence, the portrayal of a naked body cannot per se be considered to be indecent, obscene or sexually explicit.
The Bench further made certain observations on the double standards existing in India about male and female bodies and body autonomy.
It said Pulikali, a form of folk art, was done by trained men with their bodies painted on Onam in Kerala. Male bodies with biceps and six packs were appreciated. Men often roam around with no shirt or t-shirt. While the half-naked bodies of men were not sexualised, female bodies are treated differently.
The High Court observed that every parent wanted to teach their children about life. It was their right to raise children in the manner they deemed fit.
Justice Edappagath appreciated the intent with which the video was made and concluded that no offence has been committed. He said the lower court, while adjudicating on the matter, has failed to take into account the purpose with which the message was made and published.
The petitioner had filed an application in the lower court in Kerala seeking discharge from the criminal case on the ground that there was no sufficient ground to move forward with the trial. Since her application was dismissed, she approached the Kerala High Court.
The counsels representing the appellant clearly prescribed that video should be watched along with a message to understand the motive of their client in sharing it. It was also argued that body art was an intrinsic form of expression protected under Article 19(1)(a) (Right to Freedom of Speech and Expression) read with Article 21.
However, the Advocate representing T.V. Neema contemplated that an offence had been committed since her minor son had to touch her breasts. The appellant’s gestures/postures also indicated sexual intention and gratification.
He said children were protected by various statutes that prohibit use of them in any manner for such acts, hence, the excuse of protest cannot be used as a shield to save oneself.