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Rehana Fathima, in her plea, inter alia, raises the question of whether female nudity even when not visible constitutes obscenity.
Activist Rehana fathima has approached the Supreme Court against the decision of the Kerala High Court rejecting her bail plea in a case under the POCSO Act and IT Act concerning a controversial video.
After the Kerala High Court denied bail to Rehana Fathima in relation to a controversial video involving her children aged 8 and 14 painting her semi-nude body, the activist has now approached the Supreme Court seeking relief.
Fathima had moved the High Court apprehending arrest after a case was registered against her under the POCSO Act and the IT Act for child abuse and iconography. She had claimed that the video was not to be viewed in isolation but was to be seen in the underlying context with which it was published on the internet.
These submissions were rejected by the High Court that concluded that there was prima facie case made out against the activist which brought the petitioner to the Suprmee Court raising two 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 the same, the prosecution has a made a case against her for offences punishable under Sections 13, 14, and 15 of the POCSO Act, and Section 67B of the IT 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".
Moreover, the High court had found the case to be covered by the explanation in Section 13 of the POCSO Act, under which involving a child for facilitation and distribution of pornographic material is punishable.
In her plea before the Apex Court, Fathima has 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 vs 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 says,
To add further, assailing the provisions of POCSO Act invoked against her, it is also contended that there is no indecent or obscene representation of children in the edited video uploaded on the internet 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 is also challenged by her on the grounds that the video in no way makes the children subject to any form of online sexual harassment.
On these grounds, the order of the Kerala High Court have been assailed by the petitioner before the Supreme Court.
The petition is filed through Advocate Renjith B Malar.