The Supreme Court on Friday refused anticipatory bail to controversial Kerala activist, Rehana Fathima, who was booked over a video showing her children painting on her semi-nude body.
At the outset, Justice Arun Mishra, the presiding judge of the bench, asked Senior Advocate Gopal Shankaranarayanan, Fathima's counsel: "What kind of case have you brought before us? I am a little baffled".
Shankaranarayanan explained that the issue was regarding the application of provisions of pornography provisions under the Protection of Children from Sexual Offences Act 2012.
Expressing disinterest in the matter again, and raising concerns over the use of children in the video, Justice Mishra said : "Not interested in this kind of a case. How can you make use of children for this? What kind of a culture will the children perceive?"
Fathima's counsel replied that the video was created with the intention of spreading proper awareness about sexuality and narrow-minded views on obscenity.
"Her stand has always been if a man stands half-nude, nothing sexual about it. But if a woman does, it is considered obscene. She says the only way to go about this is to look sensitise people about this", he said.
"She is old enough to understand these things", Justice Mishra responded.
"I'm not on the issue of morals here. I'm on the aspect of the kind of provisions which have been applied to me. The children in the video are fully clothed. How can it fall under Section 13 of POCSO?", Shankaranarayanan submitted.
Justice Mishra responded, "Yes, prima facie it does. High Court has already looked at the merits".
When the counsel asked why should her personal liberty be curbed, the bench hinted that it was necessary so that she won't indulge it in again.
Mother Publishing Video Of Children Painting On Her Nude Body : Kerala HC Prima Facie Says Its Use Of Child For Sexual Gratification [Read Order]
The High Court had prima facie observed that the video amounted to obscene representation of children for the purposes of 'sexual gratification', attracting offences under Section 13 of the Protection of Children from Sexual Offences Act (POCSO) and Section 67 B of Information Technology Act (IT Act).
Questioning the reasoning of the High Court, she argued in the petition that nudity per se cannot be treated as obscenity. In this regard, reliance was placed on the SC precedent in Aveek Sarkar vs State of West Bengal, which held that only sex-related materials "exciting lustful thoughts" can be regarded as obscene.
She stated that the video was made and uploaded with the intention of spreading a message to "normalize the female form of body for her children and to not allow distorted ideas of sexualization pervade their minds".
The video featuring the children of Rehana Fathima - a boy aged 14 years and a girl aged 8 years - had caused widespread outrage, leading to registration of FIRs against her alleging obscene representation of children.
The HC recorded the prima facie view that the use of the children in the video was for the purpose of sexual gratification attracting the offence under Section 13 of POCSO Act.
"Prima facie, I am of the opinion that the petitioner uses the children for the purpose of sexual gratification because the children are represented in the video uploaded in an indecent and obscene manner because they are painting on a naked body of their mother", Justice Kunhikrishnan of HC observed.
After watching the video in question, the High Court observed that "the expression of the petitioner, while the children are painting on her breast, is also important".
The Court said that custodial interrogation of the petitioner was required to ascertain if the use of children in the video was for "sexual gratification".
Further, the Court said that it cannot rule out the offence under Section 67B of IT Act, which relates to facilitating abusing of children online.
The Court reiterated that it cannot agree with the contention of the petitioner that she was imparting sex education.
"..if this painting on the naked body of the petitioner happened inside the four walls of the house of the petitioner, there cannot be any offence. After watching the picture painted by the children, I have no hesitation to appreciate the talents of the children. They deserve encouragement. But not in the way the petitioner encouraged them by uploading this video. The petitioner, when shot and uploaded these videos in social media, she also claims that she wants to teach sex education to the children in the society. I cannot accept this stand of the petitioner".
Justice Kunhikrishnan further said that after seeing the video, he cannot say that there is no obscenity involved :
"I place myself in the position of the petitioner and from the view point of the viewers of every age group in whose hands this video is reached by uploading the same by the petitioner. After applying my judicial mind, I am not in a position to say that, there is no obscenity in the video when it is uploaded in the social media".
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