–By Nirvani Bhawsar and Karshin Malik
Recently, Rehana Fathima who is a women’s-rights activist from Kerala was booked under Section 13, 14 and 15 of The Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 (I.T.Act) and Section 75 of The Juvenile Justice (Care And Protection Of Children) Act, 2015 when she uploaded a video of her children painting on her naked torso. The Supreme Court, while rejecting her anticipatory bail plea, labelled the video to be prima facie “obscene” and within the ambit of child pornography.
The petitioner contended that it was a part of her battle against body discrimination and a way to mature her kids as well as others so that they do not see their bodies as mere sexual tools. Further, she sought to expose the society which censors and restricts a female body by delivering the wrong sex education and how the same society considers the exposed chest hair of a man and his naked legs to be acceptable.
Moreover, Rehana’s actions also seem to further the Feminist notion behind ‘Free the Nipples’ campaign which aims to shatter the mainstream convention of allowing men to appear topless in public, while considering it indecent or lewd for a woman to do the same. The said campaign was in full swing in some countries like the United States but it never garnered much support in India. Globally renowned celebrities went topless first, to undo the stereotypes on the streets and eventually, on social media handles to oppose the platform’s discriminatory guidelines against female nudity and nipples. In India, singer Anushka Manchanda, posing alongside a male friend, juxtaposed male and female nipples and challenged the socially acceptable and unacceptable norms.
Furthermore, Rehana’s case again sparked the debate between constitutional and public morality. Despite the former guaranteeing equality, the latter has repeatedly shown a different attitude towards men and women and their bodies and what is deemed to be acceptable in the public domain. Dr Ambedkar had asserted in the Constituent Assembly that public morality is different from constitutional morality, the conduct of society is determined by popular perceptions existent in society under the former whereas the mental attitude towards individuals and issues by the text and spirit of the Constitution is determined by the latter. The Court has to be guided by the conception of constitutional morality and not by societal morality. Justice D.Y. Chandrachud, in the case ofJoseph Shine vs. Union of India, stated that the process of creating a just and egalitarian society often involves questioning and obliterating parochial social mores which are antithetical to constitutional morality. The authors reckon that the same is being done by Rehana Fathima in this case.
Tracing the Standards for Obscenity
Section 67 of the I.T. Act and Section 292 of The Indian Penal Code, 1860 (‘the Code’) are two provisions under the Indian law that deal with transmission of obscene material. While the former deals with such material in electronic form, the latter instead deals with the print media version of it. Furthermore, Section 293 magnifies the punishment under Section 292 if the obscene material is sold to a person below 20 years of age.
Examining the scope of Section 292 would reveal that the provision intends to make punishable the sale, distribution, public exhibition, import or export, possession, advertisement or putting of obscene material into circulation in any manner. However, there are certain exemptions given for the purpose of science, literature, arts, religion, and so on. This immunity also extends to artifacts and paintings represented on/in Ancient monuments and temples.
Though the word ‘obscenity’ has been repeatedly used in these provisions, there is no clear definition that has been provided for it. Leaving obscenity without a definition, however, seems reasonable, since the open ended nature of the terms makes it difficult to attribute any single objective meaning to the term. But this Section does imply its meaning through words such as lascivious (expressing or causing sexual desire) or prurient interest (excessive interest in sexual matters). Black law dictionary defines obscenity as “character or quality of being obscene, conduct, tending to corrupt the public merely by its indecency or lawness”.
The courts in many cases have made an effort to define obscenity and have delineated tests for the same. In the case of Ranjit D. Udeshi v. State of Maharashtra, the court adopted the Hicklin Test which states that obscenity will be judged upon “whether the material has the tendency to deprave and corrupt those minds that are open to such immoral influences, and into whose hands a publication of this sort may fall.” The material in such cases was to be looked in isolation and out of the context of the work it was a part of. But a drawback of this test soon came to light as it did not adhere with the language of Section 292 which mandates the obscene material to be taken as a whole and read in context of the work it is a part of.
In the case of Aveek Sarkar v. State of West Bengal, a newspaper had published a semi nude picture of a celebrity couple, one of whom was dark skinned. The purpose of the picture was to convey a message against the evil-practises of Apartheid and racism and that ‘love triumphs all’. But a complaint was lodged against it terming the content ‘immoral’ and ‘obscene’. The Supreme Court, in this case, disregarded the Hicklin test and adopted the ‘Contemporary Community Standard Test’ which states that for a material to be obscene, exploitation of sex must be a dominant characteristic and undue in nature and will be judged from the perspective of an average person, by applying contemporary community standard. Contemporary Community Standards Test fluctuates along with the changing time, perception, views, ideas and ideals, it moves with time and development of culture. The authors believe this is what makes the Contemporary Community Standard Test more adaptive in nature. The court also pointed out that “A nude picture of a woman per say cannot be termed obscene, if not accompanied by a tendency to arouse feelings or revealing an overt sexual desire.” Thus, it has been well established by the Supreme Court bench of Justices K S Radhakrishnan and A.K. Sikri that a nude picture of a woman does not equal obscenity unless it depicts sexual desire or tends to provoke such feelings. And the same would depend on “the particular posture and the background in which the nude/semi-nude woman is depicted.” A photograph should be examined with the context in which it appears and on the basis of the message it communicates. In fact, the Court in the above mentioned case appreciated the photograph and the article in light of the message that it wanted to convey, which was to eradicate the evil of racism and apartheid in the society and to promote love and marriage between people of different races and colours.
In the same way, the video in which Fathima let her kids paint on her naked torso has been accompanied with her message regarding sex education which cannot be said to have ‘feelings of arousal’ or ‘overt sexual desire’ in the mind of an average person. It has been well established by the Courts that any content cannot be judged in isolation and the said video in this case coupled with its write-up (or caption) paints a story that resonates with contemporary society. Her write-up in the post makes her intention of starting a conversation on sex education pretty clear. She brings to light the distorted narrative in which society views a female body and exposes the hypocritic views fixated to it. Applying contemporary community standards with a contextual backdrop of the social message of sex education attached with the picture, the said video would not appeal to the prurient interests of an average person. As for a certain segment of society which might find a child painting on their mother’s body as ‘obscene’, the Supreme Court in Bobby Art International and Ors. v. Om Pal Singh Hoon has clearly stated that “We do not censor to protect the pervert or to assuage the susceptibilities of the over-sensitive”.
This also points to the fact that in no way the video depicted Fathima’s children in a sexual light let alone for pornographic purposes as is required by Chapter-3 of the POCSO Act of which Fathima had been accused. The objective of POCSO Act is to protect children from the offences of sexual assault, sexual harassment and pornography. Black Law dictionary defines pornography as “depicting sexual activity or erotic behavior in a way that is designed to arouse sexual excitement”. The provisions of Section 13 under the POCSO Act are attracted if there is an ‘indecent’ or ‘obscene’ representation of a child or if the child is depicted to be indulged in a sexually stimulated activity. The intent or purport which is of prime importance under the said provision is sexual gratification or pornography. Events such as these make us as a society introspect and reflect on our preconceived notions and how we, on the face of it, perceive a man’s bare chest as totally conventional and innocent but the same of a woman is deemed to be sexual and obscene.
The Fundamental Right to Freedom of Speech and Expression is not an absolute right, it is subjected to reasonable restrictions, one of them being `decency and morality’ from which this law emanates. But even such restrictions cannot be imposed beyond a rational and logical limit, it is essential to tolerate unpopular views in the socio-cultural space. The authors believe that it should not be left to a majoritarian vantage point to prescribe what shall be considered orthodox in matters of social morality. We must also promote a culture of open dialogue when it comes to societal attitudes.
The Supreme Court, while elaborating morality, has laid down that it is only one of the many elements in the composition of values that a just society must pursue. There are other equally significant values which a democratic society may wish for education to impart to its young. Among those is the acceptance of a plurality and diversity of ideas, images and faiths which unfortunately faces global threats. Then again, equally important is the need to foster tolerance of those who hold radically differing views, empathy for those whom the economic and social milieu has castaway to the margins.
Legal literature has always emphasized the need for law to reflect the changes and reconstructions of the socio. While the judgments discussed above show that the reading of the law by our courts has widened, the fact still remains that its execution is gendered. Different stereotypes are attached to the bodies of both males and females and those who are brave enough to set free of the stigmas often tend to get persecuted if not legally then socially. It is high time our society detached itself from the taboos lashed with the female body and sex education.
[The authors are second year law students at NALSAR, Hyderabad]