Rehana Fathima’s Case: Kerala High Court’s Misdirected Decision Is A Huge Step Backwards For Child Rights

The case was simple. The Police registered an FIR against Rehana Fathima, a model turned activist who routinely exposes her skin on social media, for getting her minor son of 14 years to paint on her naked chest and then publishing a video of the same on Facebook. The Final Report was submitted citing offences under Section 10 read with Section 9(n), Section 14 read with Sections 13(b) and 15 of the POCSO Act, Sections 67B (a),(b),(c) of the IT Act and Section 75 of the Juvenile Justice Act.

The Trial Court refused to discharge Rehana Fathima from the case. This order was reversed by the Bench of Dr. Justice Kauser Edappagath of the High Court.

Wrong understanding of “Sexual Intent” under POCSO Act

Section 9 (n) speaks about aggravated sexual assault committed by a relative of the child. Sexual assault as per Section 7 involves making a child touch the breast of a person, with sexual intent. Rehana admitted to doing the acts shown in the video. The Judge viewed the video in Court and held, based on Rehna’s arguments and the message she posted along with the video on Facebook, that the act was an “artistic form” of “political statement” without “sexual intent”. The Court also relied upon the statements of the minor children that their mother did not sexually exploit them.

“There is nothing wrong with a mother allowing her body to be used as a canvas by her children to paint to sensitise them to the concept of viewing nude bodies as normal and thinking about them as more than just sexual objects only. Such an act cannot be termed to be one which is done with sexual intent”, the Court concluded.

The words “sexual intent” are not defined in the POCSO Act. The Supreme Court has held that it cannot be confined to any predetermined format or structure and that it would be a question of fact.

“Sexual intent” under POCSO Act need not necessarily be the intent of the accused to derive sexual pleasure or to give sexual pleasure. It can also be an intent to give sexual gratification to a viewer. Hence, indulging in conduct mentioned in Section 7 knowing that the act will be viewed lasciviously by a third party is also sexual intent. This angle would not have come if she had not videographed and published her acts.

The Facebook account of Rehana where she published the video is replete with sexualized content, including her nude and semi nude photos, both solo and with her male partner. She has gained popularity by publishing such erotic material. It is not surprising that she used her minor boy and nudity to attract attention, which she received in plenty. Obviously, the video did not go viral due to her 'reformatory' message attached to it. There are a lot of material on the internet which purport to be either educational or informatory but are actually intended to attract viewership through lascivious appeal. Not only that the High Court missed the opportunity to curb such trends, especially ones involving children, it actually weakened the law that can deal with such menace.

Moreover, under Section 30 of the Act, there is a presumption of the “culpable mental state” including intention i.e. sexual intent, and it is for the accused to prove otherwise beyond doubt. Interestingly, the High Court says, “The presumption under Sections 29 and 30 cannot be drawn unless the foundational facts constituting the offence are established”. Hence, after holding that the offence is not attracted in the case where actions are admitted, due to lack of “sexual intent”, the Court said that the presumption of intent cannot be applied since “foundational facts constituting the offence” are missing. The missing foundational fact is the “sexual intent”!

My Body, My Choice

More interesting is how the Court dealt with the offence under Section 13(b), which criminalizes the use of children for making porn. It criminalizes the use in any form of media of a child engaged in sexual acts for the purpose of sexual gratification.

The Court held that the children were not used for sexual gratification, possibly making the same mistake of thinking that it has to be sexual gratification of the accused, which can hardly ever be the case when it comes to pornography. The Court then strangely referred to bodily autonomy and the right to privacy of women. The right of Rehana to paint on her nude body was never in question. The question was only about the correctness of involving minor children and the publication of the video showing children touching her naked body.

The reference at the beginning of the order to “My Body, My Choice” appears to be in this context, about Rehana’s choice to paint on her naked body or to put it on public display, which was never in question. Rehana has no right to choose to make her 14 year old son touch her naked breasts and publish the video of the act. Doing so is sexual assault as per law and hence has nothing to do with her right to bodily autonomy. The Court totally misdirected itself in referring to bodily autonomy or privacy in the context.

“To term this innocent artistic expression to be ‘usage of a child in real or simulated sexual act’ is harsh”, the Court said about invocation of Section 13(b). The Court overlooked Section 14 which clarifies what could be “sexual act” under Section 13(b). Section 14 (b) prescribes punishment if a “person using the child for pornographic purposes commits an offence referred to in section 7, by directly participating in pornographic acts”. Hence “sexual act” can be what is mentioned in Section 7 i.e. making a child touch the breast of the accused. The High Court would not have felt that invoking 13(b) is “harsh” if it had noticed Section 14(b).

Involving Children In Political Messaging

The Kerala High Court held that offence under Section 75 of the Juvenile Justice Act is not attracted, after holding that “it cannot also be said that the act alleged is abuse or exposition, or neglect of the child”. The Court also found that the act of the accused was meant as a “political statement” and that the accused was trying to “challenge patriarchal stereotypes and spread a message”.

The use of children in political demonstrations or protests or for making political statements will amount to “abuse” of children under the JJ Act. Abuse is not limited to causing physical hurt or sexual abuse. The National Commission for Protection of Child Rights (NCPCR) has often sought registration of FIR under Section 75 of the JJ Act when children are used for making political statements. The NCPCR had demanded FIR for publishing images of minor children holding posters in schools in support of arrested AAP leader Manish Sisodia. The NCPCR had also demanded FIR against Maharashtra MLA Aaditya Thackeray when he shared photos of showing children holding placards against the construction of a Metro car shed in the Aarey forest area.

Wrong Analogies & Baseless Assertions

Sabarimala Temple

While attributing exalted motives to Rehana Fathima for publishing the video containing nudity, the Court held that she has “a long history of battling the patriarchy and hyper-sexualization of women in society”. In addition to her participation in the ‘Kiss of Love’ movement and female ‘Puli Kali’, the High Court referred to her attempt to enter the Sabarimala Temple and said, “Her act of defiance was seen as an attempt to challenge the patriarchy and gender discrimination that allegedly underpinned this discriminatory practice”. It is not clear how the High Court arrived at such a finding about how the public viewed her attempt to enter the shrine.

There were massive protests across the state against Rehana’s attempt to enter the Temple under police protection. While a smaller section of the people supporting the stand of the Communist Government in the state viewed it as an attempt to challenge the patriarchy and gender discrimination, the majority were of the opinion that she was merely a pawn in the hands of the Communist Party, attempting to implement the Party’s political agenda. Their view now stands fortified since after the setback that the Communist Party received in the 2019 Assembly Elections and its consequent change in stand on Sabarimala Temple, Rehana conveniently stopped challenging ‘patriarchy’ at the Temple, though the legal position on the issue remains the same.

Breast Tax & Myth of Nangeli

Section 67B of the IT Act makes punishable, publishing material in electronic form depicting children in “obscene or indecent or sexually explicit” form. The Court, without much reasoning, held that the impugned acts are not “sexually explicit”. On whether they are “obscene or indecent”, the Court discussed the meaning of the terms and previous judgments on the subject at length. In the process, the Court said that nudity and obscenity are not always synonymous and that “This is a State where women of certain lower castes had once fought for the right to cover their breasts”.

Claims that women from ‘lower castes’ in Kerala had to fight to cover their breasts or that they had to pay a tax to be able to do so are seriously contested claims. The story of Nangeli who chopped off her breasts and handed them in a plantain leaf to those who sought breast tax from her is considered a fictional story by many historians.

This story, considered by many as leftist propaganda, was earlier cited by the Chief Justice of India during a public speech. (read column)

If Man Can Display Bare Chest

“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”, the Kerala High Court said.

The comparison by the Kerala High Court between men displaying their bare chests in public and women exposing their breasts is misplaced in the context for two reasons. Firstly, Section 7 criminalizes touching the breast of a girl child or making the child touch the breast of a person with sexual intent. Touching the chest of a boy or making a child touch the chest of a man is not an offence under the provision. Likewise, touching the breasts of a woman without consent will be a sexual offence under the IPC while doing so to a man will not attract the same offence.

In this case, Rehana made her minor child touch her breasts. The Court was not seized of a challenge to Section 7 on the ground that it discriminates between the chest of a boy or man and the breasts of a girl or woman. Even in the context of what is obscene or indecent under Section 67B of the IT Act, the comparison between bare chest and bare breast appears to be misplaced since our laws treat both differently.

Likewise, the Court compared exposing human nudity with “murals, statues, and art of deities displayed in the seminude in ancient temples”. “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.

Khajuraho Temple is replete with erotic sculptures which even depict bestiality. For good or for bad, the standards of social morality in India have changed due to Victorian influence on culture. The current standards of social morality are reflected in our laws. For example, the offence of Voyeurism under the IPC refers to “private act” by a woman where her breast may be exposed. Though it is trite law that nudity and obscenity are not synonymous and that morality and criminality are not coextensive, to cite naked Hindu Goddesses in the context is farfetched.

More importantly, the issue at hand is not one about a woman exposing her skin. Rehana routinely engages in creating and publishing photos and videos involving nudity. She crossed the line this time by involving minor children. Towards the end of the order, the High Court appears to have lost sight of this important aspect while dealing with the prosecution's irrelevant argument about restrictions on Rehana’s freedom of speech and expression.

It is not surprising if the State does not want to see Rehana Fathima punished and if the prosecution did not bring many of these important aspects to the Court's notice, given her perceived affinity towards the ruling political party. However, it is disappointing that the High Court dealt with issues that will seriously impact Child Rights superficially, and instead resorted to meaningless exposition of irrelevant concepts.