Rehana Fathima, a women’s rights activist from Kerala, wins the famous Rehana Fathima vs. State of Kerala & Anr case. In this landmark judgment, Kerala High Court quashed the case against Rehana Fathima on Monday, observing that nudity and obscenity are not always synonymous. It was in 2020 that Rehana Fathima posted a video on social media depicting her minor daughter and son painting on her bare torso under the hashtag ‘Body Art and Politics’.
The video went viral and was met with widespread rage and disapproval from the public. The gesture was regarded as obscene, indecent, and immoral. Accordingly, a case was filed against Rehana Fathima under the various provisions of the Protection of Children from Sexual Offences Act (POCSO Act), Information Technology Act, and Juvenile Justice (Care and Protection of Children) Act (JJ Act).
In the judgment, while acquitting Rehana Fathima, Justice Kauser Edappagath observed that “Nudity should not be tied to sex. 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. The same can be determined to be so only in context. The context here shows that the said depiction is one of the political expression of the petitioner and artistic expression of the children.” (via The Hindu).
The court also rejected the prosecution’s argument that the video was against the public notions of morality and observed that notions of social morality are inherently subjective. It said, “Morality and criminality are not coextensive. What is considered as morally wrong is not necessarily legally wrong”.
The court emphasized that painting a mother’s upper body by her children as an art project cannot be characterized as a real or simulated sexual act. It was “harsh” to label “the innocent artistic expression” as an act of using a child for sexual gratification, it added. Furthermore, the court ruled out the presence of any sexually arousing content in the video and emphasized the double standards regarding the sexualization of naked torsos of men and women. The court pointed out the tradition of body painting in men during Pulikali, Theyyam, and other rituals and observed that the display of the male body in this regard is never considered obscene or indecent, unlike the female body.
Justice Kauser Edappagath further observed that the right of a woman to make autonomous decisions about her body is at the 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 court said the intention behind the video posted by Rehana Fathima was to expose society’s double standards and educate her children to consider the nude body as “more than just a sexual object”.
Apart from the case in the discussion, Rehana Fathima’s activism includes her participation in the 2014 Kiss of Love protest organized in Kochi against moral policing and her attempt to enter the Sabarimala Temple in Pathanamthitta district of Kerala in 2018 following the Supreme Court verdict allowing the entry of women of menstruating age to the temple. She is also known for participating in Pulikali in 2016, challenging the usual male representation and dominance in the event.
