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VERDICT OF THE KERALA HIGH COURT: DISTINCTION BETWEEN NUDITY AND OBSCENITY

INTRODUCTION

Over the years, the sexualisation of the female body is one of the concerned issues. In a study, it has been found that female bodies are more sexualised than males.[1] Sexualisation is not only limited to young girls but across all ages but more specifically to young adult women. Body Autonomy can be defined as the power to make free choices about one’s own body without violence or coercion.[2] According to the report of the United Nations Population Fund, more than half of the women have been rejected for their bodily autonomy.[3] Our Patriarchal society has contributed to the increase in events of such matters.  The male body has been provided with more bodily autonomy than the woman. They have never been questioned about their choices or decisions about their own body and lives. Women’s bodies are categorised under a patriarchal structure which constitutes esteem, social values, morals, culture, etc. Over-sexualisation of females has negative effects on various factors, which hampers their well-being.

Nudity can be defined as a condition in which the individual is not wearing any clothes.[4] Primarily, obscenity is not defined in the Indian Penal Code but it is punishable under Section 294 of the code.[5] It states that, the display of any obscene conduct, whether by words or acts in public against public decency will be punishable.[6] However, Obscenity can be defined as the depiction of any material or body, etc to entice sexual feelings, in a sexual manner which is against public decency.[7] A perfect definition of obscenity is difficult to find as it is subjective. In a recent judgement of the Kerela High Court, the court has laid down a major distinction between nudity and obscenity. The judgement has particularly noticed the deceptiveness existing in modern society between the female and male bodies. A mere representation of a nude body cannot be considered always sexual or obscene. Painting on the upper body of the women as an art project cannot be regarded as obscene as the act is not sexual. It was not done to stimulate any sexual intent. All obscene materials can be said as nude but all nude materials cannot be considered as obscene. I feel, one thing which distinguishes between them is the ‘INTENTION’. If the act was done with sexual intent, then it is regarded as obscene but if there is a paucity of the element ‘INTENTION,’ it cannot be said as obscene. 

SUMMARY OF THE CASE

A criminal case was filed on a video posted by a mother on the internet in which her children were painting her semi-nude body. She was charged under the POSCO Act.[8]

The woman gave her explanations that she made the video to challenge the old patriarchal mindset and to disseminate awareness about the over-sexualisation of the female body. The woman wanted to impart the concept of a nude body, viewed as normal to their children. There are different ways parents teach their children but ultimately every parent wants everything best in the interest of their child. The act by the mother was not obscene but was a mode of teaching her children, in a manner as she wishes.

JUDGEMENT

The Kerela High Court saw the video and held that the video will not be considered obscene, as there is nothing sexual act in the video. The video was innocent with children painting with utmost focus, and there was a note of information which the mother wanted to convey through that video. The children in no manner were being exploited and there was a lack of sexual motive in the video which discharges the liability of the mother. Hence, the case was discharged on the principles of ‘Bodily Autonomy.’ The court was of the view that there is no problem in permitting children to paint on their mother’s body using it as a canvas. The purpose and intention of making and uploading the video was to introduce the concept of a nude body to the children. It could not be inferred from the present case that the children were used for pornography. The innocent act of the children lacks the sexual intention and there was no sexuality in the video. Therefore, it was not deemed obscene. Nudity should not be categorised as immoral or indecent. There are pieces of evidence that depict, the ancient time’s sculpture and paintings of the goddess or deities which were nude or semi-nude. They are freely displayed in public places, like museums. The idols of goddesses in the temple were also of the same nature, but which signifies divinity.

Body painting on the men is an accepted tradition in Kerela during a Festival known as ‘Pulikalli’. The paintings are conducted over the body of male artists. Men usually walk even without shirts and such an act is not considered as obscene or immoral. When a semi-nude body of a man is conceived as normal and not sexualised. Why a female body is not treated in the same manner? The nudity of the female body is only regarded for sexual purposes. Females are often referred to as property or pieces of object for satisfying sexual desires. The naked body of was female is considered taboo and meant only for sensual needs.

The precedent, like this judgement, was cited in the cases of Ranjit D. Udeshi vs State of Maharashtra,[9] and Avareek Sarkar vs State of West Bengal,[10] where it was held that nudity will not always tie to the notion of sexual intent or act.

CONCLUSION

The Constitution guarantees us our fundamental rights in this case, the woman has the right to make autonomous decisions regarding her body which specially attracts the right to equality and privacy which is enshrined in Articles 14 and 21 of the Indian Constitution.[11] Article 21, also imparts us with personal liberty. Therefore, body art in the form of nudity aligns with the articles mentioned above and the allegations charged on the accused were set aside. The video was a kind of protest about the over-sexualisation of the female body and thus it certainly requires the need of the naked body in the video to convey its purpose. The message which also I wanted to convey through this blog is that there is nothing sexual or offensive about the female nude body which is mostly open to sexualisation. Just as beauty lies in the eyes of the beholder thus, obscenity is too.

Author(s) Name: Astha Prakash (Central University of South Bihar, Gaya)

Reference(s):

[1] Report of the APA Task force on the ‘Sexualization of the Girls’ executive summary (American Psychological Association) <https://www.apa.org/pi/women/programs/girls/report-summary.pdf > accessed 21 June 2023

[2]  What is women’s ‘bodily autonomy’ and why does it matter for everyone? (World Economic Forum, 10 March 2022)<https://www.weforum.org/agenda/2022/03/what-is-bodily-autonomy-and-why-does-it-matter-for-women/> accessed 21 June 2023

[3] What is women’s ‘bodily autonomy’ and why does it matter for everyone? (World Economic Forum, 10 March 2022)<https://www.weforum.org/agenda/2022/03/what-is-bodily-autonomy-and-why-does-it-matter-for-women/ > accessed 21 June 2023

[4] The Britannica Dictionary, ‘Nudity’< https://www.britannica.com/dictionary/nudity> accessed 21 June 2023

[5] The Indian Penal Code, 1860, s. 294.

[6] Central Government Act, ‘Section 294 in the Indian Penal Code’ < https://indiankanoon.org/doc/594493/  > accessed 21 June 2023

[7]John Phillips Jenkins, ‘Obscenity’ (Encyclopaedia Britannica, 18 May 2023) < https://www.britannica.com/topic/obscenity > accessed 21 June 2023

[8] Protection of Children from Sexual Offences Act, 2012

[9] Ranjit D. Udeshi vs State of Maharashtra,(1965) AIR 881

[10] Avareek Sarkar vs State of West Bengal, (2014) 4 SCC 257

[11] The Constitution of India, 1950, arts. 14, 21