The Kerala High Court on Monday raised some pertinent questions regarding the vastly different manner in which naked or semi-naked male and female bodies are viewed and treated by society.[XXX v State of Kerala]
Justice Kauser Edappagath underscored that nudity should not be automatically assumed as sexual but must be considered in the appropriate context.
“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. So also, the depiction of the naked body of a woman cannot per se be termed to be obscene, indecent, or sexually explicit. The same can be determined to be so only in context,” the Court said.
The single-judge pointed out that nude female sculptures in temples and other public spaces are considered as art or even holy.
He also referred to the agitation by women in Kerala against the discriminatory breast tax or mulakkaram in British ruled India which involved a woman named Nangeli cutting off her breasts in protest.
“It is wrong to classify nudity as essentially obscene or even indecent or immoral. This is a State where women of certain lower castes had once fought for the right to cover their breasts. We have murals, statues, and art of deities displayed in the seminude in ancient temples run all over the country. Such nude sculptures and paintings freely available in public spaces are considered art, even holy. Even though the idols of all Goddesses are bare-chested, when one prays at the temple, the feeling is not of sexual explicitness but of divinity,” the Court said in its judgment.
Pertinently, the Court pointed out the hypocrisy in treating the naked male body with a different yardstick than the female body.
“Body painting on men is an accepted tradition during ‘Pulikali’ festivals in Thrissur, Kerala. When ‘Theyyam’ and other rituals are performed at the temple, painting is conducted on the bodies of male artists. The male body is displayed in the form of six-pack abs, biceps etc. We often find men walking around without wearing shirts. But these acts are never considered to be obscene or indecent,” the Court observed.
It went on to surmise that the people who consider women’s bodies to be inherently obscene do so because they are used to considering women’s bodies as one merely an object of desire.
“When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way. Some people are so used to considering a woman’s naked body as an overly sexualised one or just an object of desire. There is another dimensional view about female nudity- that is, female nudity is taboo because a naked female body is only meant for erotic purposes.”
The Court also said that the same discrepancy can be seen even when it comes to the right of bodily autonomy which is often diluted for women in patriarchal societies.
“Body autonomy that allows individuals the freedom to make their own choice about their bodies is a natural right and part of their liberty. 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.”
When the half-nude body of a man is conceived as normal and not sexualised, a female body is not treated in the same way.
Kerala High Court
On the morality question that props up when discussing nudity, the Court observed that morality, apart from being subjective, is not synonymous with legality.
“The notions of social morality are inherently subjective. Morality and criminality are not coextensive. What is considered as morally wrong is not necessarily legally wrong”, the Court said.
In this regard the Court cited the examples of adultery and consensual homosexual sex that were decriminalised by the Supreme Court in Joseph Shine v. Union of India and Navtej Singh Johar v. Union of India respectively.
“Adultery, consensual same-sex relations and live-in relationships can continue to be scrutinised on a moral ground by certain people as much as one wants, but they are legal because law and morality are not equivalent to each other. Society’s morality and some people’s sentiments cannot be the reason for instituting a crime and prosecuting a person. An action is permissible if it does not violate any of the laws of the land”, the Court observed.
Society’s morality and some people’s sentiments cannot be the reason for instituting a crime and prosecuting a person.
Kerala High Court
The Court’s observations came in its judgment quashing a case registered against a women’s rights activist for offences punishable under various provisions of the Protection of Children from Sexual Offences (POCSO) Act
The case was registered against her after she posted a video on her social media platforms showing her two minor children, a 14-year-old boy and an 8-year-old girl, painting on her semi-nude torso.
The Court watched the video in open court and noted that the same was not an act of sexual gratification with any sexual intent but was a a video with a message against objectification of female bodies.
The Court noted that the petitioner had given a detailed message below her video, where she argued that the naked body was in response to a controlling, sexually frustrated society. According to the description under the video, no child who has grown up seeing his mother’s nakedness and body, can abuse another female body.
Hence, the video in question cannot neither be characterised as a real or simulated sexual act, nor can it be said that the same was done for the purpose of sexual gratification or with any sexual intent, the Court said while quashing the case.
Just as beauty is in the eyes of the beholder, so is obscenity.
Kerala High Court
Advocate Renjith B Marar represented the petitioner.
Senior Public Prosecutor TV Neema appeared for the State.