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The Body Beautiful

A landmark judgment of the Kerala High Court has said that a woman’s naked body cannot be termed as obscene or sexually explicit and what may be morally wrong is not necessarily legally wrong.

A landmark judgment of the Kerala High Court has said that a woman’s naked body cannot be termed as obscene or sexually explicit and what may be morally wrong is not necessarily legally wrong

In a recent ruling, the Kerala High Court has reaffirmed the importance of differentiating between nudity and obscenity. It emphasized that the mere sight of a woman’s naked upper body should not be automatically deemed sexual. The Court’s judgment came in response to a case involving a 33-year-old woman rights activist who faced charges under the Protection of Children from Sexual Offences Act for allowing her minor children to paint on her semi-nude upper body as part of a body art project.

The bench, presided over by Justice Dr Kauser Edappagath, made the significant observation while quashing the case against the woman. It said that the depiction of a woman’s naked body cannot be categorically termed as obscene, indecent or sexually explicit. The judgment highlighted the crucial distinction between society’s moral standards and the laws of the land, stating that an action can only be considered a crime if it violates existing legislation.

The Court recognised that the notions of social morality are inherently subjective and what may be considered morally wrong does not necessarily equate to being legally wrong. The ruling emphasised that society’s moral standards and certain individual sentiments should not be the basis for initiating criminal proceedings against a person. Instead, the legality of an action should be determined solely by whether or not it violated established laws.

The woman in question sought to challenge patriarchal stereotypes and spread the message that there is nothing sexual or offensive about the naked female body. However, she was saddled with criminal prosecution alleging that she exploited her own children for sexual gratification.

However, the judgment read: “Mother is the name of God in the lips and hearts of little children. The mother is the one who nurtures and guides the child through every defining moment of life. She is the nucleus of a child’s life. A mother-child relationship is one of the earth’s most solemn and pious relationships. There is no bond stronger and more sincere than the one between a mother and her child. The essence of motherhood is pure and serene love. The statement of the children shows that they are in loving care of the petitioner. The children are exposed to prosecution against their own mother contrary to their wishes. No doubt, the prosecution of the petitioner will have torture and adverse effect on the children. Hence, in the best interest of the victims also, the prosecution cannot be allowed to be continued.”

The judgment explicitly recognised the autonomy of an individual’s body, irrespective of gender. It highlighted the pervasive threat to the body agency and autonomy of women in a patriarchal structure. The judgment read: “Every individual is entitled to the autonomy of his/her body—this is not selective on gender. But we often find this right is diluted or denied to the fairer sex. The autonomy of the male body is seldom questioned, while the body agency and autonomy of women are under constant threat in a patriarchal structure. The women are bullied, discriminated against, isolated, and prosecuted for making choices about their bodies and lives. Here is a case where a mother who tried to challenge patriarchal stereotypes and spread a message that there needs to be nothing sexual or offensive about the naked female body by letting her kids be exposed to her semi-nude body was saddled with criminal prosecution alleging that she exploited her own children for sexual gratification. What started as a body art project for a mother with her kids with control of the narrative turned out to be a ‘criminal act’.”

The judgment further stated that prosecution against their own mother goes against the wishes of the children and can have a torturous and adverse effect on them. In the best interest of the victims, the Court ruled that the prosecution cannot be allowed to continue.

This judgment holds significant implications for the interpretation and application of laws related to nudity and obscenity in India. It challenges prevailing societal attitudes that automatically associate nudity with obscenity or sexual content. This progressive ruling recognises the need to re-evaluate and reconsider the legal framework concerning nudity and the human body.

Section 292 of the Indian Penal Code deals with publishing, selling or distributing obscene material. It states that any person who publishes, sells, distributes, exhibits or circulates any obscene book, pamphlet, paper, drawing, painting, representation, or any other object shall be punished with imprisonment and/or a fine. However, the term “obscene” is not explicitly defined in the IPC, leaving it open to interpretation by courts.

The determination of obscenity is often subjective and depends on prevailing community standards. The Kerala High Court ruling acknowledges the subjectivity of societal morality and emphasised the importance of aligning legal standards with the principles of justice and individual freedom.

However, this judgment does not imply a complete disregard for existing laws or an encouragement of explicit content. Instead, it promotes a thoughtful approach that considers the context, intent and impact of an action before deeming it obscene. The Court’s decision encourages a broader understanding of morality and criminality, emphasising the need to strike a balance between individual creativity, social sensibilities and the larger impact on society.

Similar cases have arisen in India in the past, blurring the line between nudity and obscenity and leading to contentious legal battles. One notable case is the Chandrakant Kalyandas Kakodkar case in 2007, which marked a significant shift in the judiciary’s approach towards obscenity. The case addressed the question of whether mere nudity in a film automatically renders it obscene. The Court, in this case, recognised the importance of artistic freedom, context and the overall impact when assessing obscenity in films.

The realm of art and the portrayal of nudity has frequently been a subject of controversy, sparking debates around artistic expression, censorship and the depiction of sensitive subjects in various art forms, including cinema. Several notable instances have emerged, shedding light on the complexities surrounding nudity in art and its reception by society.

One such case is the controversy surrounding MF Husain. Husain, hailed as one of India’s greatest artists, who faced vehement criticism and legal troubles due to his paintings featuring nudity, particularly the portrayal of Hindu goddesses in an abstract and provocative manner. They sparked outrage among certain groups who deemed them offensive and disrespectful to religious sentiments. The controversy led to debates about the boundaries of artistic freedom, cultural sensitivity and the clash between creative expression and societal values.

Similarly, the film Bandit Queen directed by Shekhar Kapur was slammed for its explicit depiction of nudity and sexual violence. The film, based on the life of Phoolan Devi, a former dacoit and later politician, portrayed her traumatic experiences, including instances of sexual assault. The graphic and raw portrayal of nudity and sexual violence sparked debates about the line between artistic representation and the exploitation of sensitive subjects. Advocates argued that the film was an honest portrayal of Devi’s life and the societal issues she faced, while critics raised concerns about the potential for glorification and exploitation of violence through explicit imagery.

More recently, a photoshoot of actor Ranveer Singh, where he posed naked for a magazine cover, also created a row and led to a debate about freedom of expression, artistic boundaries and societal values. Separate complaints were filed against Singh by a lawyer and an NGO representative, alleging offenses under various sections of the IPC such as Section 292 (sale of obscene books, etc., to young people), Section 293 (sale, etc., of obscene objects to young people) and Section 509 (word, gesture or act intended to insult the modesty of a woman). Provisions of the Information Technology Act were also invoked.

This incident ignited discussions about the delicate balance between artistic expression and offensive behaviour. Supporters argued that artistic freedom should allow actors and artists to experiment with different styles and expressions, while critics contended that there was a need for responsible self-regulation and adherence to cultural norms. The photoshoot raised questions about the responsibility of public figures in shaping cultural norms and the impact of their actions on society.

These instances collectively reflect the ongoing dialogue surrounding nudity, artistic expression and censorship in various art forms. The debates sparked by these controversies continue to shape the discourse on artistic boundaries, the portrayal of sensitive subjects and the role of art in challenging societal norms. 

The ruling by the Kerala High Court promotes an enlightened approach that challenges the automatic association of nudity with obscenity and sexual content. The judgment emphasises the importance of aligning legal standards with the principles of justice and individual freedom. 

—By Shashank Rai and India Legal Bureau

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