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"Why do you do all this? You might be an activist but why do this? What kind of nonsense is this? It is obscenity clearly which you are spreading", the Court observed
The Supreme Court today dismissed a petition filed by activist Rehana Fathima seeking bail in relation to charges of child pornography and obscenity levelled against her.
The Bench of Justices Arun Mishra, BR Gavai and Krishna Murari observed that the video uploaded by Fathima of her semi-nude body being painted on by her children was "clearly obscene" and "prima facie falls within child pornography."
Unimpressed with the actions of the activist, Justice Mishra observed,
Senior Counsel Gopal Sankaranarayanan, representing Fathima, argued that the charges of child pornography against her are not made out, given the fact that the children in the video are fully clothed. However, the Court said that the offence is prima facie made out and proceeded to dismiss the plea.
The activist had earlier moved the Kerala High Court seeking anticipatory bail. After her plea was rejected, she moved the Supreme Court. Her petition before the Apex Court posed the following questions:
"Whether female nudity (even when not visible) per se constitutes obscenity?
Whether children painting on their mother's body can be concluded to be "sexual gratification" and "child abuse" under the stringent laws?"
The petitioner had uploaded a video titled "Body art and politics" on YouTube showing her children painting on her semi-nude body. The video, the petitioner highlights, has not been taken down by the platform itself considering there is no nudity in the same. Despite this, the prosecution has a made a case against her for offences punishable under Sections 13, 14, and 15 of the Protection of Children from Sexual Offences (POCSO) Act, and Section 67B of the Information Technology Act, as well as Section 17 of the Juvenile Justice Act.
While dismissing Fathima's plea, the High Court had said that whether or not imagery of this nature can be published on the internet for the purpose of teaching sex education is a question that needs to be decided ultimately, but it prima facie was "problematic".
In her plea before the Apex Court, Fathima claimed that the High Court failed to consider the principles laid down by the Supreme Court in its judgments in the case of Aveek Sarkar v. the State of West Bengal as well as in the case around the film Bandit Queen in relation to pictures of nudity. Mere portrayal of nudity or semi-nudity cannot be said to be obscene, the Court had said in these cases and had added that the pictures should be "designed to excite sexual passion in persons who are likely to see it."
In this backdrop, Fathima's plea before Supreme Court said,
It was also contended that there is no indecent or obscene representation of children in the video and "it is impossible to conclude that any child was used for the purposes of sexual gratification."
The slapping of Section 67B of the IT Act against Fathima was also challenged by her on the grounds that the video in no way makes the children subject to any form of online sexual harassment.