Kerala HC quashed the charge on Obscenity
In Rehna Fatima v State of Kerala & Another, the High Court of Kerala quashed the charge of nudity and other ones levelled against the activist Ms Rehna Fatima under the penal code and other laws, for posting a video on internet depicting her minor children painting on her bare torso under the hashtag “Body art and Politics”.
The video met with widespread disapproval in the society terming it as obscene, indecent, and immoral. Therefore, a case was charged on her under the provisions of Indian Penal Code (IPC), Prevention of Children from Sexual Offences (POCSO) Act, Information Technology Act (IT Act), and Juvenile Justice Act (J J Act).
But the High Court rejected the prosecution’s arguments that the video was against the public notions of morality, as the notions of social morality are inherently subjective.
Obscenity and the law
The term obscenity is not defined in the Indian laws. Obscenity refers to explicit or offensive content that may corrupt or morally degrade individuals. It is quite difficult to determine what is obscene and what is not, without considering the moral standards and the impact of the material in question on the public at large.
The provisions that deal with obscenity in India under IPC are the following ones:
- Section 292 IPC which deals with the sale, distribution, and public exhibition of obscene material. It makes it a punishable offence to sell, rent, distribute, or publicly exhibit any material that is lascivious or appeals to prurient interests.
- Section 293 IPC prohibits the sale, etc. of obscene objects to young persons.
- Section 294 IPC addresses obscene acts or songs performed in public places.
The IT Act also contains the following provisions which safeguards interests of citizens against the publication or transmission of obscene material through electronic means:
- Section 67 of IP Act: This section deals with the punishment for publishing or transmitting obscene material electronically. It makes it an offense to publish or transmit any material containing sexually explicit content or material that is lascivious or appeals to prurient interests. The provision includes both text-based content as well as visual representations.
- Section 67A of IP Act: This section addresses the punishment for publishing or transmitting sexually explicit material in electronic form. It specifically targets material that is sexually explicit and invasive of a person’s privacy.
- Section 67B of IP Act: This section pertains to the punishment for publishing or transmitting material depicting children in sexually explicit acts electronically. It is aimed at curbing child pornography and protecting children from exploitation.
The Cinematograph Act, 1952 is a regulatory law that empowers the Central Board of Film Certification to certify films to ensure they do not contain obscene or offensive content.
Nudity does not amount to obscenity, says HC
The High Court, in Rehna Fatima case states 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.
The high court adds that the upper part of the male body is displayed in public. Men walk around without wearing shirts. These acts are never considered to be obscene or indecent. But when the half-nude body of a man is conceived as normal and not sexualized, a female body is not treated in the same way. Some people are so used to considering a woman’s naked body as an overly sexual object.
The high court points out that the autonomy of the male body is seldom questioned, while women’s body autonomy is under constant threat in a patriarchal structure. On the other hand, the women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives.
Tests to determine obscenity: Hicklin & community standards
Indian judiciary uses the Hicklin test to determine if something is obscene from long back. The Hicklin Test was established in English Law in Regina vs Hicklin’s case (1868).
As per the test, a work can be considered obscene if any portion of it is found to “deprave and corrupt those whose minds are open to such influences”.
In the case of Ranjit D. Udeshi v State of Maharashtra (1964), the Supreme Court introduced the following three modifications to the Hicklin test: sex and nudity in art and literature alone cannot be evidence of obscenity, the work must be evaluated as a whole, considering both obscene and non-obscene parts, and publication for the public good can be a defence against the charge of obscenity.
But in Aveek Sarkar v State of West Bengal case, the Supreme Court upholds the more adaptive Community Standards test. It says that if the society accepts the portrayal of sexual activities, the court must not strike it down for the sake of a few sensitive persons but should accept it.
Conclusion
In the Rehna Fatima case, the core is her right to make autonomous decisions about her body, which forms part of her fundamental right to equality and privacy. It also falls within the realm of personal liberty under Article 21 of the Indian Constitution.
Right to freedom and expression is guaranteed under Article 19 (1) (a) of the Constitution but this right can be reasonably restricted under Article 19 (2) of the Constitution based on “decency or morality”, thereby keeping a balance between both. These two conflicting legal issues are in question in this case.
In short, expression of nudity of a person cannot be treated as the offence of obscenity, and no crime can be charged only on that count.
