On June 5, the Kerala High Court quashed the case against controversial ‘activist’ Rehana Fathima that was being heard in the lower court in the matter related to publishing a video of her children painting on her half-nude body. Fathima was booked under Sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO), Section 67B (d) of the Information Technology Act, 2000 and Section 75 of the Juvenile Justice (Care and Protection of Children) Act, 2015 after she uploaded the video of her children painting on her breasts. Her two minor children (a boy and a girl) were 14 and 8 years old at the time of publishing the video.
Half-nude body of man is conceived as normal but female body is overly sexualised: Kerala High Court
— Bar & Bench (@barandbench) June 5, 2023
report by @GitiPratap https://t.co/HdmTMnYXjC
Her counsel argued that the video was made to impart sex education to her children and get rid of the stigma about nudity. Earlier, the High Court had dismissed her plea seeking anticipatory bail in the matter. The court had observed that she was free to give sex education to her children in the way she wanted within the four walls of her house. However, by publishing the video, prima facie she attracted offences relating to the obscene representation of the children.
While rejecting her bail plea, Justice PV Kunhikrishnan observed, “The petitioner feels that she should teach sex education to her children. For that purpose, she asks her children to paint on her naked body and then upload the same on social media. I am not in a position to agree with the petitioner that she should teach sex education to her children in this manner.”
However, now the High Court has quashed proceedings against Rehana Fathima. In the recent judgment, the court raised concerns about the unequal treatment of naked and semi-naked male and female bodies in society. The court observed that nudity should not be automatically equated to sexuality without considering the proper context. It was argued that the mere sight of the bare upper body of a woman should not be assumed to be sexual, obscene or indecent in nature. The court pointed out the sculptures of nude women in temples that are considered art and sacred.
Nudity should not be tied to sex. The mere sight of the naked upper body of the woman should not be deemed to be sexual by default: Kerala High Court pic.twitter.com/9NnDJJJbD1
— Bar & Bench (@barandbench) June 5, 2023
The court said while men walk with bare chests during festivals and rituals in Kerala which is acceptable when it comes to women their bodies are often seen as sexual objects. The court further added that women’s autonomy is frequently questioned and restricted leading to discrimination.
Interestingly, the court repeated the fictional story of Nangali and the ‘breast tax’ to counter the prosecution’s argument that “the naked upper body of the petitioner is exposed in the video, and hence it is obscene and indecent”. The court said, “This is a State where women of certain lower castes had once fought for the right to cover their breasts.”
Despite the fact that the story of Nangali has been debunked repeatedly, it has been used multiple times by the “experts”. So much so, Chief Justice of India Dhananjaya Yashwant Chandrachud referred to the fictional story during a lecture in December 2022. Referring to the story of Nangeli, a lower caste woman who, as per the story, cut off her breast to oppose the breast tax, he said, “It was a cry of anguish against social stratification. When Dr BR Ambedkar dressed in a three-piece suit, he reclaimed his community’s status in society.”
According to several arguments made by historians, the story of Nangeli is a fiction based on folklore that had no names whatsoever. In 2018, OpIndia published a detailed report on the origin of the story of Nangeli. Detailed reports on the story of Nangeli and ‘breast tax’ can be read here.
