The Kerala High Court on July 24th had issued an order rejecting the anticipatory bail application submitted by a Ms. Fatima A.S against whom an FIR had been filed by the Ernakulam Town South Police, alleging offences punishable under Sec 13, 14 and 15 of the Protection of Children from Sexual Offences Act, 2012 (POCSO) and under Sec 67B(d) of the Information Technology Act 2000 as well as Sec 75 of the Juvenile Justice (Care and Protection of Children) Act 2015. So why does this order merit a consideration? What exactly did the applicant do to be charged under these offences? Well, Ms. Fatima uploaded a video named “Body Art & Politics” of her children doing body art on her torso. This video is the cause of action to the alleged commission of child pornography. It is in relation to this incident that the bail application had been filed.

The provision of anticipatory bail was included in the CrPC (Code of Criminal Procedure) following the recommendation of the 41st Law Commission report, in which the intention and purpose of such provisions as preventing people from suffering disgrace due to false cases being filed against them, especially in the times of political rivalry or can be used otherwise if there are sufficient grounds to hold that an accused is not likely to abscond or misuse liberty while on bail and there is no justification to detain the accused for days and then apply for bail.

The lengths and breadths of anticipatory bail application scrutiny by the Sessions or the High Court has been a matter of judicial interpretation in several cases. The decision that still holds ground, decided by a five-judge bench of the Supreme Court, is Gurbaksh Singh Sibbia & Ors vs State of Punjab, wherein it was observed that just because an anticipatory bail application facilitates a bail prior to arrest of a person, it does not entirely imply that the provision is an extraordinary power which is to be exercised only in exceptional circumstances. The consideration truly is that the provision bestows discretion which is to be used in circumstances justifying its exercise. The provision is extraordinary only to the extent that it is different from the bail provisions under Sec 437 and 439 of the CrPC. Sec 438 protects the personal liberty of an individual in the light of two important principles of criminal jurisprudence which are presumption of innocence unless proven guilty and that grant of bail is the general rule and putting a person in jail or prison or correction home is the exception.

Justice Krishna Iyer observed in Gudikanti Narasimhalu vs Public Prosecutor, High Court of Andhra Pradesh, that issue of bail is one of liberty, justice, public safety and burden of public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. The factors or matters that need to be considered in an application of bail as laid down by the apex court in State of UP vs Amarmani Tripathi are: prima facie or reasonable ground to believe commission of an offence; severity of alleged offence; danger of absconding; character, position and standing of accused; reasonable apprehension of evidence tampering; danger if justice being thwarted.

Further the court elaborates on the concept of a ‘good’ mother…

In the present bail application order, the Court relied effectively solely on existence of prima facie case in order to reject the bail while other factors where neither discussed nor considered. Taking a deeper look into the offences the applicant is charged with relevant terms under Sec 13 of POCSO Act, emphasized by the Court are use of a child for the purpose of sexual gratification, indecent or obscene representation of a child, distribution of pornographic materials. The court supports the existence of a prima facie case by observing that the act is obscene because the children are painting on the naked body of their mother, and further observes that the expression of the petitioner in the video is also important.  It was also observed by the Court that the painting by the children deserves encouragement, but uploading such a video is not the right form of encouragement. The Court then went on to elaborate on the concept of a ‘good’ mother, as one who has outstanding qualities such as deep love, sacrifice, dedication, protection and security. Citing phrases from the Manu Smriti and the Quran, they observed that the mother is singled out as she bears a greater responsibility though both parents are mentioned. These observations evidence how thoughts that stemmed from patriarchal mindset continue to influence individuals.

The term that merits attention here is “obscene”.

For the purpose of the application, the term that merits attention here is “obscene”. Courts across the world have grappled with the issue of defining obscenity and the process has undergone several developments across jurisdictions. The settled position in Indian Jurisprudence as explained in Aveer Sarkar & Anr vs State of West Bengal, is the application of community standards test to determine obscenity.

In the absence of specific definition to obscenity, the court observed that a material can be considered obscene if it is lascivious, appeals to prurient interest and tends to deprave and corrupt persons who see the matter. Further observed that a nude or semi-nude picture of a woman cannot be termed obscene unless it has the tendency to arouse the feeling or revealing an overt sexual desire, the matter must be designed to excite sexual passion in persons who are likely to see it depending on the posture and background of the picture. This has to be judged from the point of view of an average person. 

It is the association of obscenity with any form of nudity by the society… that forces such thoughts.

Applying the above reasonable standards of obscenity, by no stretch of imagination can the video in which the applicant’s own children draw a beautiful body art on the applicant’s torso be held as obscene or as inciting sexual interests. The arrangement of the video, the complete involvement and dedication of the children in portraying their encouragement worthy body art skills clearly shows its artistic value and intent. The relationship between the persons involved in the video and the participation of the actors are of great value in determining the interest, purpose and context of the video. It is bizarre, in line of the standing judicial interpretation of obscenity, to hold such depiction as obscene.

The primary reason pointed out to hold the video obscene is that the art was on the naked torso of the mother, the observation that nudity of a woman in a picture makes for a prima facie case for obscenity is definitely a step backward in reflecting the society’s intellectual growth in embracing one’s body and freedom to express oneself. It is rather a pathetic conclusion that a reasonable man’s standard would result in judging a semi-nude body art prima facie as connected to sexual desires. 

The incoherent analysis in the order juggling between confining the observations made purely for the purpose of anticipatory bail and trying to judge the existence of a prima facie case, it can be clearly seen that there has been no adequate consideration to either the relevant factors of granting the anticipatory bail or the accepted standards of classifying a material as obscene. The case cited to support the order rejecting the bail, P Chidambaram vs Directorate of Enforcement decided by a two judge bench of the Supreme Court made the observation that anticipatory bail is an exceptional remedy, strongly supported by the reasoning that economic offences constitute a separate set of crimes that requires different treatment as it can affect the economic stability of the country and was never intended to provide a general guideline for an anticipatory bail application scrutiny. The facts and circumstances of the case were not considered in the light of the general guidelines which include several factors to judge the eligibility of a person for an anticipatory bail keeping in mind the person’s right to liberty.

The intention of the video “Body Art and Politics”, to provide sex education, so as to convey the idea that we need to develop a thinking that does not associate every form of nudity with sexual desires or as a material capable of corrupting reasonable minds, is worthy of consideration and societal introspection. A progressive mindset respecting a woman’s body and not associating body exposure in anything and everything as sexual in nature is a need of every civilized society. The act has in fact sparked a lot of debate and discussion surrounding the society’s perspectives of a woman’s body and her freedom to express herself. It is worthy to note here how regrettable it is that prolonged association of shame and humiliation with nudity has led to toxic perspectives that has even led to suicides by women victims of cyber-crimes such as leaked private photos. 

A progressive mindset respecting a woman’s body and not associating body exposure in anything and everything as sexual in nature is a need of every civilized society.

It is the association of obscenity with any form of nudity by the society without judging the context or circumstances that forces such thoughts. The video is in fact a challenge to assessing the maturity/discerning power of our society and has definitely drawn attention to the tussle between suppressive societal norms and one’s freedom of bodily autonomy. To conclude: the observations, in the bail rejection order, reflects upon the role of a mother by drawing from holy scriptures in an anticipatory bail which involves the assessment of an act of an independent and self-reliant mother of liberal ideas. This, I am forced to opine, is a reflection of subtle sexism and a reminder of constant societal tendency to school a woman about her responsibilities with no due regard to evolved roles played by her. The order in this case is to pacify public reaction at the cost of sidelining sound judicial principles.

Tracking the developments of the case, Ms. Fatima further approached the Supreme Court where the anticipatory bail was once again rejected, following which she had to surrender. Subsequently, an application for an ordinary bail was filed before the Special Court and the same has been granted, while the investigation regarding the case is progressing. The video has brought into light the relevance of body politics in a time crimes against women are on a constant rise. It can now only be hoped and prayed that the court arrives at a sound decision that paves the way to tackle the evil attitude of female body objectification.