In a aid for a girls’s proper activist, Rehana Fathima, who was dealing with fees beneath a POCSO (Safety of Youngsters from Sexual Offences Act) case for permitting her kids paint her semi-nude physique, the Kerala Excessive Court docket Monday dominated that her act can’t be characterised as an actual or simulated sexual act and stated that the society’s default view that the bare higher physique of the feminine is sexualised in all contexts is unfair and discriminatory.
“The suitable of a lady to make autonomous selections about her physique is on the very core of her basic proper to equality and privateness. It additionally falls inside the realm of private liberty assured by Article 21 of the Structure,” the courtroom stated.
The case
Fathima was charged beneath POCSO and Juvenile Justice and the Data Expertise (IT) Acts for circulating a video, by which her minor kids had been seen portray on her semi-nude physique. Justice Kauser Edappagath discharged the 33-year-old activist from the case, citing that it was “harsh” to time period such an “harmless inventive expression” as a utilization of a kid in an actual or simulated sexual act and that it didn’t quantity to youngster pornography.
The Excessive Court docket’s ruling got here on Fathima’s enchantment searching for dismissal of the continuing case after a trial courtroom rejected it. In her enchantment, Fathima contended that the act was meant as a political assertion because the bare higher physique of the ladies is sexualised in all contexts, whereas it isn’t the case for males. The courtroom agreed together with her competition and famous that Fathima’s intention behind the circulation of the video was to “expose this double commonplace prevailing in society.”
The courtroom’s ruling
The prosecution had termed the act as “obscene” and “indecent” as Fathima had uncovered her higher physique within the video and claimed that it was in opposition to the general public notions of morality. Nevertheless, rejecting the competition, the courtroom stated that “nudity and obscenity aren’t at all times synonymous”. “It’s flawed to categorise nudity as basically obscene and even indecent or immoral,” it additional stated.
Justice Edappagath stated it couldn’t be stated that the act was finished for the aim of “sexual gratification or with sexual intent”. “There may be nothing to point out that the youngsters had been used for pornography. There isn’t any trace of sexuality within the video. Portray on the bare higher physique of an individual, whether or not a person or a lady, can’t be said to be a sexually specific act,” the courtroom stated.
Discriminatory follow
The courtroom noticed that each one people had been entitled to the autonomy of their physique, regardless of their gender however girls are sometimes devoid of this proper. “Ladies are bullied, discriminated in opposition to, remoted, and prosecuted for making selections about their our bodies and lives…however nudity shouldn’t be tied to intercourse,” it stated.
The courtroom rejected the prosecution’s morality argument, stating that “morality and criminality aren’t coextensive. What is taken into account as morally flawed shouldn’t be essentially legally flawed.” The courtroom additionally famous from the statements given by the petitioner’s kids that they’re cherished and cared for by their mom and Fathima’s prosecution would have hostile results on them.
The case was initiated in opposition to Fathima for her video titled “Physique and Politics” on social media, following a report filed by Cyberdom, the cyber wing of Kerala police beneath the assorted sections of the POCSO and IT Act. Earlier, she was additionally booked by the police on the criticism lodged by the Bharatiya Janata Get together OBC Morcha chief A V Arun Prakash.