On Friday, the Supreme Court refused anticipatory bail in controversial POCSO Case to Kerala activist, Rehana Fathima, who was booked over a video showing her children painting on her semi-nude body.
The POCSO Case
Justice Arun Mishra, the presiding judge of the bench questioned Senior Advocate Gopal Shankaranarayanan who appeared to be Fathima’s counsel as “What kind of case have you brought before us? I am a little baffled”.
Shankaranarayanan responded that the application of provisions of pornography provisions under the Protection of Children from Sexual Offences Act 2012 was the issue.
Justice Mishra expressing disinterest in the matter again, and raising concerns over the use of children in the video 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 responded that with the intention of spreading proper awareness about sexuality and narrow-minded views on obscenity, the video was created.
He expressed, “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.”
Justice Mishra responded, “She is old enough to understand these things.”
Shankaranarayanan submitted, “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?”
Justice Mishra told that, “Yes, prima facie it does. High Court has already looked at the merits”.
The bench hinted that it was necessary that her personal liberty be curbed, so that she doesn’t indulge it in again.
The observation was made by the Court that the video amounted to the 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).
The Petitioner questioned the reasoning of the High Court in the petition that how her nudity per se cannot be treated as obscenity and 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 also mentioned 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 had caused widespread outrage, featuring the children of Rehana Fathima – a boy aged 14 years and a girl aged 8 years – leading to registration of FIRs against her alleging obscene representation of children.
Observation of the Court in the POCSO Case
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.
Justice Kunhikrishnan observed, “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.”
The High Court after watching the video observed that “the expression of the petitioner, while the children are painting on her breast, is also important”.
The Court demanded custodial interrogation of the petitioner to ascertain if the use of children in the video was for “sexual gratification”.
The Court also expressed that the offense under Section 67B of IT Act, which relates to facilitating abusing children online cannot be related here.
Disagreement of Court and the Petitioner in the POCSO Case
The Court cannot agree with the contention of the petitioner and reiterated that her way of imparting sex education was not acceptable in Social Media.
“..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 offense. 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”.
“I place myself in the position of the petitioner and from the viewpoint 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”.Justice Kunhikrishnan after seeing the video says that he cannot say that there is no obscenity involved