Kerala High Court quashes case against activist booked for posting video of her children painting on her semi-nude torso

The Kerala High Court on Monday quashed a case registered against activist booked for offences punishable under various provisions of the Protection of Children from Sexual Offences (POCSO) Act [XXX v State of Kerala].The case was registered against her after she posted a video on her social media platforms showing her two minor children, a 14-year-old boy and an 8-year-old girl, painting on her semi-nude torso.Justice Kauser Edappagath said that nudity and and obscenity are not always synonymous and in order to attract the offences charged against the petitioner, sexual intent is a necessary ingredient.The Court watched the video in open court and noted that the petitioner had given a detailed message below her video, where she argued that the naked body was in response to a controlling, sexually frustrated society. According to the description under the video, no child who has grown up seeing his mother’s nakedness and body, can abuse another female body.The Court also noted that the petitioner has a long history of battling the patriarchy and hyper-sexualization of women in society. She was part of the ‘Kiss of Love’ movement in 2014, which was a movement in Kochi against moral policing.Analysing the video in the backdrop of the statements by the children and her long history as an activist, the Court concluded that there was nothing on record to even remotely indicate that the petitioner did the said act with any sexual intent"Every parent tries their best to teach their children all about life. Every parent has the right to raise their children in the manner they wish. Children do not inherently grow up thinking that any action is right or wrong unless it is impressed upon them as such. There is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sensitise them to the concept of viewing nude bodies as normal and thinking about them as more than just sexual objects only. Such an act cannot be termed to be one which is done with sexual intent," the Court said.It added that the video in question can neither be characterised as a real or simulated sexual act nor can it be said that the same was done for the purpose of sexual gratification.Hence, it quashed the case against the petitioner..The petitioner, a 33-year-old women’s rights activist, had posted the video on her social media platforms triggering massive outrage with several people slamming her for subjecting her children to what they considered to be an obscene and vulgar act.The petitioner defended her actions as a form of self-expression and an attempt to break free from social and cultural taboos that constrain women’s bodies. However, a case was registered against her and the trial court began proceedings after releasing her on bail. She moved an application seeking to be discharged but the trial court rejected the same leading to the present case before the High Court.She contended that the video could not be watched in isolation without understanding the message accompanying it which made it clear that she intended to normalize the female body and to spread a message to not allow distorted ideas of sexualization in the minds of children.She said that she was challenging the double standards prevailing in the society regarding the default sexualization of the female body as opposed to the male body.However, the prosecution argued that when the statute itself prohibits specific use of children in a certain manner, it cannot be violated under the shield of protest..The Court noted that to attract the main offences charged against the petitioner, sexual intent is a necessary ingredient. "The petitioner only allowed her body to be used as a canvas for her children to paint on. 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. It also falls within the realm of personal liberty guaranteed by Article 21 of the Constitution," the judgment said..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.Kerala High Court.The Court further observed that women are often bullied and discriminated against for simply making choices about their own bodies and lives.‘My Body, My Choice’ – an iconic tagline coined by the prochoice movement in the early ’70s to represent bodily autonomy and gender equality – continues to be an expression of the rights women deserve and is still consistently utilised by women right’s activists across the globe as a powerful retaliation to sexist societal ideas and archaic patriarchy. The body is the most fundamental space over which an individual shall have autonomy. Body autonomy that allows individuals the freedom to make their own choice about their bodies is a natural right and part of their liberty. Every individual is entitled to the autonomy of his/her body – this is not selective on gender. But we often find this right is diluted or denied to the fairer sex. The autonomy of the male body is seldom questioned, while the body agency and autonomy of women are under constant threat in a patriarchal structure. The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives," the Court said in its judgment..The single-judge said that the right to bodily autonomy which is the right of every individual regardless of their gender, is often diluted for women in a patriarchal societyThe Court also pointed out the discrepancy in how the naked male body is treated with a different yardstick than the female body.It went on to observe that regardless of one's perception of morality, what is moral and what is legal do not need to overlap always. "No doubt, Article 19 of the Constitution, which guarantees complete freedom of speech and expression to every citizen, also makes an exception in favour of laws which imposes a restriction on the exercise of the right in the interest of public decency or morality....However, I have already found that the video uploaded by the petitioner was neither obscene nor indecent. The petitioner was only propagating her views on the default sexualisation of the female naked body. It is trite that the freedom of speech and expression includes freedom of propagation of one’s thoughts, ideas, opinions, and views. The State cannot, by any legislative or executive action, interfere with the said right except insofar as permissible under Article 19 (2). An expression of an opinion, with no overtones of obscenity or vulgarity, should not be a cause of action for criminal action," the Court said..Upon finding that none of the offences alleged will fall against the petitioner, the Court set aside the trial court's order and discharged the petitioner..Advocate Renjith B Marar represented the petitioner.Senior Public Prosecutor TV Neema appeared for the State..[Read Judgment]