XXX Vs. State Of Kerala

By Anmol Saini[1]

In the High Court of Kerela

NAME OF THE CASEXXX Vs. State Of Kerala
CITATIONCRL. REV. PET NO. 433 OF 2022
DATE OF JUDGMENTJune 5, 2023
PETITIONERXXX
RESPONDENTState Of Kerala
BENCH/JUDGEJustice Kauser Edappagath
STATUTES/ CONSTITUTION INVOLVEDThe Code of Criminal Procedure,1973 The Information Technology Act, 2000; The Protection of Children from Sexual Offences Act, 2012. (“POCSO Act”); The Juvenile Justice (Care and Protection of Children) Act, 2015.
IMPORTANT SECTIONS/ ARTICLESThe Code of Criminal Procedure,1973—S. 227 The Information Technology Act, 2000– S. 67B (a),(b),(c). The POCSO Act, 2012– S. 10 r/w 9(n), 14 r/w 13(b) and 15. The Juvenile Justice (Care and Protection of Children) Act, 2015– S. 75.  

Abstract

The Kerela High Court has delivered a significant ruling regarding nudity, the female body, and obscenity. In the case at hand, the petitioner who was a women’s rights activist posted a video on her social media platform where her minor son aged fourteen was seen painting on her naked torso, and her minor daughter of eight years was seen playing nearby. The video was uploaded on YouTube and was shared through her personal Facebook account, which attracted a huge number of viewers. Several of the viewers slammed her for subjecting her children to obscene and vulgar acts and posting the same to the world. The petitioner was charged under several sections of the POCSO Act, IT Act, and Juvenile Justice Act. The prosecution failed to take into consideration the context sent along the video and solely based their charges on the visuals of the content. The Hon’ble court on the matter held that none of the charges filed against the Petitioner are evidently proven or even draw any prima facie for the alleged offences, acquitting the petitioner.

Introduction

The interpretation and application of the terms such as “obscene” and “indecent” within the Indian Legal framework have long been subjected to debate. The statutory definition is vague that has caused an uprising in the varied interpretation of the terms in different contexts for the purpose of decisions making in India. 

Other than this the concept of obscenity has long been a subject of intense debate and scrutiny as it interwinds itself with the core issues of gender equality, bodily autonomy, and the limits imposed on artistic expressions of the artists in their art forms. Further, “obscenity” as described in Black’s Law Dictionary is something that is extremely offensive under the contemporary community standards of morality and decency, or something which is grossly repugnant to the generally accepted notions of what is appropriate and what is not.[2] The Black’s Law Dictionary further explained that obscenity involves being morally abhorrent or socially taboo particularly when referring to or depicting sexual or excretory functions.

Further “indecent” is defined as offensive to modesty and good taste, lacking propriety, and appearing vulgar or unseemly, by the New Webster’s dictionary. Moreover, “indecency” is defined as the state or condition of being outrageously offensive, and that too particularly in a vulgar or sexual manner.[3]

In this case, the concept of obscenity got entangled with the notions of bodily autonomy, gender equality, and artistic expression. Tracing bac to the early 1970’s a powerful slogan, “My body, my choice” emerged as a railing cry for Women’s Right Activists which emphasized the fundamental right that individuals have to make decisions about their own bodies.  Despite the significant advancements in the fight for bodily autonomy the freedom of women to cover their own bodies continues to face challenges and restrictions in Patriarchal societies. The case discussed as followed elaborates on how the concept of obscenity got entangled with the notions of bodily autonomy, gender equality, and artistic expression. 

The following case highlights the struggle faced by a mother who sought to challenge societal stereotypes through an artistic project involving her own children, however, it did not end well for her and landed her in criminal prosecution on charges of obscenity and indecency.

Bodily autonomy encompasses the fundamental right of individuals to exercise control over their own bodies. This right lies at the core of personal freedom and self-determination. Further, it recognizes that the body of an individual is the most fundamental space for one and thus the autonomy of one over one’s own body has to be absolute. Implying that the right to bodily autonomy shall be irrespective of gender and every person should be entitled to make decisions about their own body safeguarding their physical integrity and making personal choices. However, a stark contrast is evident when considering the right of bodily autonomy of a male and a female. The bare chest of a male is rarely subjected to scrutiny or considered inherently obscene or sexual and is often perceived as a normative representation of the male body. 

Conversely, if a woman’s bare chest is exposed, it frequently becomes associated with obscenity, and objectification, and sexualization reinforcing societal biases and perpetuating gender inequalities. Such differential treatment based on gender reflects deeply ingrained biases and double standards which are prevalent in our societies. Often the autonomy of a woman over her body is denied or diminished while the male bodies are granted greater freedom without any question. As presented in this case an innocent artistic expression, which was a mother’s effort to normalize the naked upper body of a female among her children, is viewed as a criminal act involving obscenity and indecency.

Facts of the case

The case involves a 33-year-old women’s rights activist who gained recognition in Kerala for her progressive views. She posted a video on her social media platforms that depicted her two minor children, a 14-year-old boy and an 8-year-old girl, painting on her partially nude torso with the hashtag ‘Body Art and Politics.’ The video was posted on YouTube and shared on her personal Facebook account, causing widespread outrage. Many people criticized her for subjecting her children to what they considered an obscene and vulgar act and then broadcasting it to the rest of the world.

The petitioner justified her actions as an act of self-expression and an attempt to break down societal and cultural taboos that restrict women’s bodies. Due to public outrage, the police filed a case against her. A final report was filed in the Additional Sessions Court in Ernakulam, following an investigation, charging the petitioner with offences under the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), the Information Technology Act, 2000 (IT Act), and the Juvenile Justice (Care and Protection of Children) Act, 2015 (JJ Act). The petitioner appeared in the lower court and was granted bail. She filed an application for discharge under Section 227 of the Criminal Procedure Code (Cr.P.C.) on the ground that there is insufficient evidence to proceed against her. However, the court below dismissed her application, stating that there were grounds to presume her guilt. In the current revision petition, the petitioner challenges this order.

A careful examination of the FIR, First Information Statement (FIS), witness statements, and other documents, according to the petitioner’s counsel, would reveal that none of the alleged offences were established. The counsel further contended that the uploaded video should not be viewed in isolation but should be understood in the context of the accompanying message, which aimed to normalize the female body and challenge societal double standards regarding sexualization. The defense also asserted that body art involving nudity is protected under Article 19(1)(a) and Article 21 of the Indian Constitution.

The Senior Public Prosecutor, on the other hand, contended that the final report contained enough evidence to conclude that the petitioner has committed the alleged offences. The video depicted the petitioner as semi-nude, wearing half trousers and exposing her upper body. The 14-year-old minor son was made to touch her breasts and other parts of the body in order to draw a picture. The prosecution claimed that this was a sexually explicit act involving a child, and that the video’s content was obscene and pornographic.

The prosecutor pointed out that the truthfulness or falsity of the claims must be established during the trial and cannot be predicted at this stage. It was argued that violating statutory prohibitions on specific uses of children is not justified under the guise of protest. The petitioner’s application for discharge was denied by the lower court, resulting in the current revision petition.

Issues Raised before the court

  • Whether there is any sexual intent on the part of the petitioner involved in the act?

Arguments from the Petitioner Side

  • Sri Renjith B. Mara, the learned counsel on behalf of the petitioner argued that on careful examination of the First Information Report, the First Investigation Report as well asthe statement of the witness and other related documents none of the offenses charged against the petitioner is proved to be true.
  • Further the learned counsel argued that the intention of the petitioner was to normalize the views of society surrounding the female body and to spread the message of not distorting the default idea of sexualization of the female body in comparison to a male body.
  • The counsel also filed an application of discharge under Section 227 of Cr.P.C. stating that there exists no sufficient ground to carry out the proceedings against the petitioner, arguing that body art in the form of nudity is an expression protected under Article 19(1)(a) when read with the article 21 of the Constitution of India.

Arguments from the Respondent Side

  • The learned Senior Public Prosecutor Smt. T.V. Neema on behalf of the respondent submitted that there exist materials in the final report which create the presumption that the petitioner has committed the alleged offences.
  • Prosecution argued that the content of the video is prima facie obscene and pornographic since it depicts the petitioner as semi-nude exposing her torso to her minor son of fourteen ears who for the act of painting was caused to touch the breast and other body parts of the lady.
  • Further it was said that if a statute prohibits the use of children in any manner for a certain act then it cannot be prohibited in the name of protest.

Related Provisions

The Constitution of India, 1950

  • Article 19(1)(a): –

(1) All citizens shall have the right

     (a)to freedom of speech and expression;[4]

  • Article 21: – Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law.[5]
  • The Code of Criminal Procedure,1973
  • Section 227: – Discharge – If, upon consideration of the records of the case and documents submitted therewith, and after the hearing the submissions of the accused and the prosecution in this behalf, the judge considers that there is no sufficient ground for proceeding against the accused, he shall discharge the accused and record his reason for so doing.[6]
  • The Information Technology Act, 2000
  • Section 67B: – Punishment for publishing or transmitting of material depcting children in sexually explicit act, etc., in electronic form – Whoever, –
  • Publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or
  • creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or
  • cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource;
  • facilitates abusing children online, or;
  • records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:

Provided that provisions of section 67, section 67A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form–

  • the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is the interest of science, literature, art or learning or other objects of general concern; or
  • (ii) which is kept or used for bona fide heritage or religious purposes.

Explanation–For the purposes of this section, ―children‖ means a person who has not completed the age of 18 years.

  • The Protection of Children from Sexual Offences Act, 2012
  • Section 9(n): – Aggravated Sexual Assault – whoever, being a relative of the child through blood or adoption or marriage or guardianship or in foster care, or having domestic relationship with a parent of the child, or who is living in the same or shared household with the child, commits sexual assault on such child;[7]
  • Section 10: – Punishment for Aggravated Sexual Assault – Whoever, commits aggravated sexual assault shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.[8]
  • Section 13(b) – Use of child for pornographic purposes – (b) usage of a child engaged in real or simulated sexual acts (with or without penetration);[9]
  • Section 14: – Punishment for using child for pornographic purposes

 [10][(1) Whoever uses a child or children for pornographic purposes shall be punished with imprisonment for a term which shall not be less than five years and shall also be liable to fine and in the event of second or subsequent conviction with imprisonment for a term which shall not be less than seven years and also be liable to fine.

(2) Whoever using a child or children for pornographic purposes under sub-section (1), commits an offence referred to in section 3 or section 5 or section 7 or section 9 by directly participating in such pornographic acts, shall be punished for the said offences also under section 4, section 6, section 8 and section 10, respectively, in addition to the punishment provided in sub-section (1).][11]

  • Section15: – Punishment for storage of pornographic material involving child –
  • [12][ Any person, who stores or possesses pornographic material in any form involving a child, but fails to delete or destroy or report the same to the designated authority, as may be prescribed, with an intention to share or transmit child pornography, shall be liable to fine not less than five thousand rupees and in the event of second or subsequent offence, with fine which shall not be less than ten thousand rupees.
  • Any person, who stores or possesses pornographic material in any form involving a child for transmitting or propagating or displaying or distributing in any manner at any time except for the purpose of reporting, as may be prescribed, or for use as evidence in court, shall be punished with imprisonment of either description which may extend to three years, or with fine, or with both.
  • Any person, who stores or possesses pornographic material in any form involving a child for commercial purposes shall be punished on the first conviction with imprisonment of either description which shall not be less than three years which may extend to five years, or with fine, or with both and in the event of second or subsequent conviction, with imprisonment of either description which shall not be less than five years which may extend to seven years and shall also be liable to fine.][13]

Judgment

The hon’ble court emphasized that every parent tries their best to educate their children all about life and for that purpose, they have every right to raise the child in that environment they wish. It was further pointed out that a child learns what is wrong and right through the impressions left on him or her by their parents. Thus, there is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sensitize them to the concept of viewing nude bodies as normal and thinking about them as more than just sexual objects only.[14] Stating that such an act of education cannot be termed as one performed with any sexual intent.

Therefore, the basic ingredient of the offence under section 9(n) r/w 10 of the POCSO Act is not attracted. Further, the allegations under section 13(b) punishable under section 14 of the said act are not standing since the act of painting the upper body of a mother by her own child can neither be characterized as an act of real or simulated sexual act nor the same can be inferred as an act performed the purpose of sexual gratification. Designating the act of innocent artistic expression as the usage of the child in real or simulated sexual acts unduly severe. Further, nothing in the video clarifies that the children were used for pornography. Since no pornography is depicted in the video section 15 cannot be attracted.

Further section 67B(a)(b) and (c)of the IT act, which criminalizes the publication or transmission of any material depicting children explicitly involved in sexual acts cannot be attracted since no sexually explicit act has taken place and no evidence exists for the happening of the same. Merely painting on the upper body of a person be it a man or woman does not constitute a sexually explicit act, rendering 67B(a) unattracted. Moreover, the application of subsection (c) is not possible since there exists no cultivation or enticement, or inclusion of children in any form of online relationship as required for the charges to prevail. Moving toward subsection (b), which is attracted when the material in question depicts children in any indecent, obscene, or explicit manner. The hon’ble court states that the video uploaded is neither obscene nor indecent when viewed with the context in which the Petitioner posted it, in order to propagate her views on the default sexualization attached to the naked female body. And further held that her act was protected under the freedom of speech and expression including the freedom to propagate one’s thoughts, ideas, opinions, and views.

Regarding section 75 of the Juvenile Justice Act, in order to attract this section, the child should incur mental or physical suffering due to the assault, abandonment, abuse, or willfully neglected act of the accused. Evidently, there seems to be no assault or abandonment of the children, and no abuse or exposition, or neglect of the child is visible, rendering the offence under section 75 of the JJ act unattracted.

Justice Edappagath in the case of XXX vs. the State of Kerela has stated that a woman has all her right to make autonomous decisions related to her body since it is at the very core of her fundamental right to equality and privacy which also falls under the personal liberty guaranteed to her under article 21[15] of the Constitution.

As stated in Joseph Shine v. Union of India[16], the Hon’ble Supreme Court has underlined women’s autonomy as a facet of human dignity. Moreover, in the case of K.S. Puttaswamy v Union of India[17], a panel of nine judges from the Supreme Court, in a unanimous decision, acknowledged the right to privacy as a fundamental right protected by the Constitution. The court specifically stated that the freedom to exercise control over one’s body is an essential component of the right to privacy. The act of painting a mother’s upper body as an art project by her own children cannot be classified as a real or simulated sexual act. It cannot be asserted that this act was performed for sexual gratification or for any other sexual intentions. As a result, the categorization of this innocent artistic expression as “usage of a child in a real or simulated sexual act” would be overly harsh and inappropriate.

Conclusion

After thorough consideration, the court determined that the petitioner’s intentions were not sexual in nature. The act of allowing her children to paint her body was intended to educate them about body positivity and to sensitize them to the idea that nudity should not solely be associated with sexual objects. The court emphasized that parents have the right to raise their children in environments they deem appropriate, and the act of a mother allowing her body to be used as a canvas for art by her own children was within the bounds of her parental rights.

Thus, the petitioner was acquitted of all the alleged charges framed against her. Other than acquitting the petitioner of the charges this case emphasized the default sexualization of the naked female body. It establishes the encouragement for the exploration of diverse perspectives and challenges the societal taboos regarding the naked body of a female as compared to the same of a male.

After analyzing this case, it is evident that women continue to face ongoing struggles against societal stereotypes in their quest for rights and equality. This includes the right to bodily autonomy and freedom to make decisions about their own bodies. Furthermore, this case highlights that parents have their inherent right to educate their children and impart life lessons to them using the method they deem beneficial for the well-being of their children. Furthermore, analyzing this case can highlight the significance of considering the context and intent behind an act before labeling it as obscene or indecent. One must understand the importance of promoting education and sensitization regarding gender, nudity, and social taboos related to it. By addressing these points society can strive for an inclusive and informed perspective that respects individual rights and will foster equality and understanding among the citizens.

[1] 2nd Semester student at Tamil Nadu National Law University, Tiruchirappalli.

[2] Black’s Law Dictionary (9th ed. 2009).

[3] Ibid.

[4] The Constitution of India, 1950, Art. 19(1)(a).

[5] The Constitution of India, 1950, Art. 21.

[6] The Code of Criminal Procedure,1973, §227.

[7] The Protection of Children from Sexual Offences Act, 2012, §9(n).

[8] The Protection of Children from Sexual Offences Act, 2012, §10.

[9] The Protection of Children from Sexual Offences Act, 2012, §13(b).

[10] Subs. by Protection of Children from Sexual Offences (Amendment) Act, 2019, s. 7, for section 14, w.e.f. 16.08.2019.

[11] The Protection of Children from Sexual Offences Act, 2012, §14.

[12] Subs. by Protection of Children from Sexual Offences (Amendment) Act, 2019, s. 7, for section 14, w.e.f. 16.08.2019.

12 The Protection of Children from Sexual Offences Act, 2012, §15.

[14] XXX Vs. State of Kerala, CRL. REV. PET NO. 433 OF 2022.

[15] The Constitution of India, 1950, Art. 21.

[16] Joseph Shine v. Union of India, AIR 2018 SC 4898.

[17] K.S. Puttaswamy v Union of India, AIR 2017 SC 4161.