The Kerala High Court on Monday said that there exists an unequal treatment and perception of naked or semi-naked male and female bodies in society.
According to a report by Bar and Bench, Justice Kauser Edappagath emphasised that nudity should not automatically be associated with sexuality but should be evaluated within the appropriate context.
The court's observations were made in the context of a case involving a women's rights activist, Rehana Fathima, who was charged under various provisions of the Protection of Children from Sexual Offences (POCSO) Act.
The charges were based on a video she posted on social media, showing her minor children painting on her semi-nude torso. After reviewing the video and considering the petitioner's explanation, the court concluded that the video was not sexually motivated but aimed at highlighting the objectification of female bodies. Consequently, the court quashed the case.
Many of the commenters stated India was not ready for such declarations, while many made vulgar remarks asking to air nudity on television if it was not deemed sexual content, missing out on the context of the court’s perception of the issue.
Questioning the sexualisation of female bodies
The Kerala High Court highlighted that the naked upper body of a woman should not be presumed to be sexual by default. The court stated that labeling the depiction of a woman's naked body as obscene, indecent, or sexually explicit should only be done within a specific context.
The court mentioned the presence of nude female sculptures in temples and public spaces, which are widely considered as art or even sacred.
Hypocrisy in treating male and female bodies:
The court drew attention to the disparity in how society treats naked male and female bodies. It mentioned the acceptance of body painting on men during festivals like 'Pulikali' in Thrissur, Kerala. Similarly, during temple rituals such as 'Theyyam,' male artists have their bodies painted and displayed, focusing on their physical features like six-pack abs and biceps. However, these acts are not deemed obscene or indecent. The court suggested that this discrepancy arises because some people view women's bodies primarily as objects of desire.
Bodily autonomy and patriarchal societies
The court also addressed the issue of women's rights to bodily autonomy, which often faces dilution in patriarchal societies. It stated that every individual, regardless of gender, should have the freedom to make choices about their own bodies. However, it noted that women frequently experience bullying, discrimination, isolation, and prosecution when exercising this right. In contrast, the autonomy of the male body is rarely questioned.
Morality and legality
The court emphasised that morality, being subjective, should not be equated with legality. It cited the decriminalisation of adultery and consensual homosexual relationships by the Supreme Court in previous cases. The court argued that although some people may scrutinise these actions on moral grounds, they are legal because legality and morality are not synonymous. Societal morality and individual sentiments should not be the basis for criminalisation or prosecution.