Explained | Rehana Fathima case: Obscenity laws and the policing of female sexuality
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The Kerala High Court’s recent decision in the Rehana Fathima obscenity case draws attention to the definition, or lack thereof, of obscenity in Indian law, and how such cases undermine the agency and bodily autonomy of women

June 27, 2023 06:20 pm | Updated June 28, 2023 11:49 am IST

File photo: Rehana Fatima surrenders at the Ernakulam South police station on August 8, 2020

File photo: Rehana Fatima surrenders at the Ernakulam South police station on August 8, 2020 | Photo Credit: Special Arrangement

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

The video, uploaded on Facebook and YouTube with the hashtag ‘Body, Art and Politics,’ was captioned, “No child who has seen his own mother’s nakedness and body can abuse the female body. Therefore, vaccines against false perceptions about women’s body and sexuality should be initiated from home.”

This seemingly innocuous video triggered widespread outrage on social media leading to a deluge of comments accusing Fathima of subjecting her children to an obscene and vulgar act.

Multiple FIRs were filed against Fathima under various provisions of the Protection of Children from Sexual Offences Act, 2012 (POCSO), the Juvenile Justice Act, 2015 (JJ Act), and the Information Technology Act, 2000 (IT Act). While her initial plea for anticipatory bail was rejected, she was later granted conditional bail by a special court.

On June 5, 2023, the Kerala High Court dismissed all charges against her, underscoring that “the mere sight of the naked upper body of the woman should not be deemed to be sexual by default.” The court highlighted that what is obscene, indecent, or sexually explicit under the law can be determined “only in the context” of the depiction. 

Although Article 19 of the Constitution guarantees certain rights regarding freedom of speech and expression, reasonable restrictions can be imposed on their exercise in the interest of ‘decency and morality’. Several laws embody this restriction in the form of obscenity offences.

One prominent criticism of such obscenity laws is that they are overtly paternalistic and penalise women for exercising bodily autonomy and sexuality. According to legal scholars Indira Jaising and Andrea Wolfe, obscenity laws proceed according to the interests of male power, which it robes in the supposedly gender-neutral language of ‘good’ and ‘evil’.

Fathima on her motivation

Explaining what prompted her to make such a video, Fathima says, “I wanted to expose the double standards prevailing in society regarding the default sexualisation of the female body. Men can roam around almost naked everywhere but women are questioned even for the slightest show of skin. I wanted to teach my children that a woman’s body must be respected and not merely sexualised.”

“When the case was filed against me, my children were very worried, especially my son. He was under the impression that I had to go to jail because of him. But when the verdict of the Kerala High Court was finally pronounced, both my children were elated. Neither of my children felt that they were doing anything wrong. Neither of my children were seeing my body for the first time — I am their mother, there is no sexuality. In fact, my son has a knack for painting and was excited to try out body art for the first time,” she says sharing what her children had to endure in the process.

Fathima also stressed that there is an urgent need to sensitise the judiciary regarding such issues.

“During the hearing of my anticipatory bail application in the POCSO case, the judge mentioned how according to the Manusmriti and the Quran it is unthinkable for a mother to act like this. I was shocked to hear his comments.”Rehana Fathima Activist

This is also not the first time that Fathima has participated in artistic activism. She mentioned how she took part in the Puli Kali festival in Thrissur, Kerala back in 2016. In this predominantly male-dominated festival, people painted as tigers dance to the beat of drums and take out processions through the city. She wanted to perform in a space dominated by men — a prior instance of activism that even the court took note of in the verdict.

Pointing out that her intention was to normalise the female body to prevent distorted ideas of sexualisation in the minds of her children, she explains ‘we should not raise our children with the mindset that a woman’s body is only an object for desire or sexual gratification.’

She also emphasised that using art as an instrument for activism and resistance is very common in foreign countries — popularly known as protest art.

Gender stereotypes and regulation of female sexuality

Psychologist and social activist Ratnaboli Ray highlighted the social conditioning that leads to the policing of female sexuality due to existing patriachal power structures.

“It is a male-dominated society with patriarchal values. It has been historically seen how women’s bodies have been commodified. There is an assumption that women’s bodies are for desire alone and cannot be used for political protest.”Ratnaboli Ray Psychologist and social activist

Drawing from her work in the field of mental health, Ray adds, ‘Many women with mental illness who do not have a family to go back to consider their bodies to be their home. We have to look at women’s bodies differently. Nudity per se cannot be equated with sexuality.’

Ray also pointed out that while judgments do reflect the values of the society, more often than not they shape popular opinion and are aspirational in nature.

What did the court rule?

Obscenity to be viewed in context

At the outset, Justice Dr. Kauser Edappagath underscored the importance of viewing the video in the context of Fathima’s larger message and observed, ‘The mere sight of the naked upper body of the woman should not be deemed to be sexual by default. So also, the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent or sexually explicit.’

What constitutes obscenity under the law must be determined ‘only in the context’ of the depiction— which in this case was an attempt to make a political expression.

The court emphasised that while nudity can constitute obscenity, the two are not synonymous. Bolstering the point that nudity must be viewed in the context in which it is placed, the Court noted that there are murals, statues, and deities displayed in the semi-nude in ancient temples all over the country which are considered art and even holy.

Double standards and bodily autonomy

Agreeing with Fathima, the court acknowledged that double standards exist in society and accordingly observed, ‘We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent. When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way.’

The court further highlighted that while the autonomy of the male body is seldom questioned, the bodily autonomy and agency of women is under constant threat due to the existing patriarchal structure. .

In this regard, a reference was also made to the Supreme Court’s judgment in Justice K.S. Puttaswamy (Retd) v. Union of India (2018), wherein the Court underscored that 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.

Morality and criminality not coextensive

‘The notions of social morality are inherently subjective. Morality and criminality are not coextensive’, the court observed, holding that an action that may be considered morally wrong may not necessarily be legally wrong. In this regard, the court referred to earlier judgments of the Supreme Court striking down Section 497 (adultery) and reading down Section 377 (unnatural offences) of the IPC. It was pointed out that although the actions previously criminalised by these provisions may still be considered unethical by some, they are now legal since law and morality are not equivalent.

Upholding Fathima’s right to express herself through the video in question, the Court underscored that ‘society’s morality and some people’s sentiments cannot be the reason for instituting a crime and prosecuting a person. An action is permissible if it does not violate any of the laws of the land.’

No sexual intent

The Court also ruled that the essential ingredient of ‘sexual intent’ in POCSO offences was missing in this case and that there is nothing wrong with a mother allowing her body to be used as a canvas by her children in a bid to sensitize them to the concept of viewing nude bodies as normal.

Dismissing the POCSO charges, the court ruled — “Painting on the upper body of a mother by her own children as an art project cannot be characterized as a real or simulated sexual act, nor can it be said that the same was done for the purpose of sexual gratification or with sexual intent. To term this innocent artistic expression to be ‘usage of a child in the real or simulated sexual act’ is harsh.”

Long history of activism

Notably, the court acknowledged that the video should be seen in the context of Fathima’s long history of battling patriarchy and hyper-sexualisation of women in society. In 2018, Fathima attempted to reach the sanctum sanctorum of the Sabarimala temple after the Supreme Court ruled against the practice of allowing entry only to women of non-reproductive ages. However, her attempt was futile, despite police protection, since opponents stopped her by forming a human shield comprising children.

Fathima was also an active participant in the ‘Kiss of Love’ protest in 2014, a movement against moral policing. Fathima’s autobiography Body, Struggle and Presence also details various instances of her challenging patriarchal hierarchies which seek to control women’s bodies.   

The obscenity test and prior rulings

Section 292 of the IPC stipulates that any content is deemed obscene if it is lascivious or appeals to the prurient interest, or if its effect tends to deprave and corrupt persons likely to read, see or hear the content. This provision prohibits the sale or publication of any obscene pamphlet, book, paper, painting, and other such materials.

With no comprehensive definition in law, what is considered as obscene per the Indian courts has changed and evolved over the years. Up until 2014, courts in India were relying on the Victorian-era ‘Hicklin test’ to decide what is obscene and what isn’t. The Hicklin test, formulated in English law following Regina v. Hicklin (1868), states that if a matter had the “tendency … to deprave and corrupt those whose minds are open to such immoral influences” and be suggestive of “thoughts of [the] most impure and libidinous character,” it would be considered obscene. 

Subsequently, the test was adopted by Indian courts and affirmed in cases such as Ranjit D. Udeshi v. State of Maharashtra (1964), wherein Udeshi, a bookseller, appealed his conviction under Section 292 for selling unabridged copies of D. H. Lawrence’s Lady Chatterley’s Lover. The Supreme Court held that unless “the obscenity has a ‘preponderating social purpose or profit,’ it would amount to appealing to the ‘carnal side of human nature’” and therefore not enjoy the constitutional protection of free speech and expression.

In the seminal case Bobby Art International v. Om Pal Singh Hoon (1996), pertaining to the release of the film Bandit Queen, the Supreme Court rejected the contention that the scene depicting the rape of Phoolan Devi amounted to obscenity, as it was done to underscore a social reality. The Court held that the object of showing the victim’s nudity was not to arouse prurient feelings but revulsion for the perpetrator.

In 2014, the Supreme Court moved away from the Hicklin test and instead applied the ‘community standards test’ in Aveek Sarkar v. State of Bengal, which was regarding the publication of a semi-nude picture of Boris Becker and his fiancee. The court asserted that obscenity “has to be judged from the point of view of an average person, by applying contemporary community standards” and that a nude picture cannot be called obscene unless it has the tendency to arouse the feeling of an overt sexual desire. It then concluded that the picture is not obscene because the message it “wants to convey is that the color of skin matters little and love champions over colour”.

Misuse of law and the way forward

Elucidating how the judicial interpretation of obscenity has evolved over time, Advocate Bharat Chugh says, ‘In the last few decades our courts have realised that you cannot look at obscenity in a very strict sense. You have to look at the work in context, the artistic merit, and more importantly at what the existing community standards are. There is also a free speech element involved so courts have been wary of labelling something as obscenity, especially in cases of nudity.’

He added that the contours of obscenity must be more strictly defined in law keeping in mind existing societal realities in order to curb its misuse. He highlighted that obscenity laws are often indiscriminately invoked to stifle free speech.

“Such laws are often misused and invoked in cases wherein you are challenging different power structures whether it is patriarchy or you are saying something that is inconvenient to the politics of the day. ”Bharat Chug Advocate

Chugh emphasised that the aim of such laws should be to penalise the exploitation of minors, such as child pornography cases, instead of regulating consensual acts of adults.

‘It is a very progressive verdict. Not every instance of nudity as the court rightly says constitutes obscenity. In this case, invoking provisions of POCSO was not warranted at all. If applied correctly POCSO itself is sufficient to address all cases of exploitation of minors — you don’t require any other obscenity law,’ Chugh added.

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