Rehana Fathima case: Punishment in search of a crime?
After being denied bail by the Kerala High Court, activist Rehana Fathima has now moved apex court amid statewide debate. Asiaville explores the case through the lens of child rights, law, art and feminism.
Trigger Warning: Mention of Child Abuse, Suicide
Vulgar. Immoral. Pervert. A blot on motherhood.
These are some of the kinder words that have been used to describe Kerala-based activist Rehana Fathima. Kinder, because the other words and statements used to attack Rehana (aka Surya Gayathri) are too crude to be written, read or consumed. But even as you are reading this, more of the same comments are being left below the YouTube video that started it all.
On June 19, Rehana, who is no stranger to controversy, shared a video of her 14-year-old son (and 8-year-old daughter) painting a phoenix on her bare upper torso. Attached to the video was a statement which said, among other things: “They (children) have to grow up seeing the natural women bodies. These seeds need to be sown when they are young with proper sex education as well as sexual consciousness. No child who has grown up seeing his mother’s nakedness and body can abuse another female body. Therefore, vaccines against these false perceptions and expectations about women’s body and sexuality should be initiated from home itself(sic).” The exercise is an attempt to sow the seeds of proper sex education and sex consciousness, Rehana wrote.
The video, as expected, garnered polarising responses even in a state like Kerala, considered to be the flag-bearer of all things progressive and liberal. While some hailed the attempt as ‘praiseworthy’ in a country that continues to shy away from sex education, a majority of the viewers resorted to a slugfest. Many questioned her intentions in allowing her son to draw on her body and others termed it another attempt by Rehana to stay in the spotlight, after her previously failed attempt to enter the Sabarimala Temple.
What followed was a police case. Based on a complaint filed by BJP OBC Morcha state general secretary Adv AV Arun Prakash, Thiruvalla police registered cases for the offence under Section 67 B (d) (publishing of material depicting children in a sexually explicit act) of the Information Technology Act and Section 75 of the Juvenile Justice (Care and Protection of Children) Act.
A case was also registered under Sections 13, 14 and 15 of the Protection of Children from Sexual Offences Act (POCSO) by Kochi city police.
Following this, on June 27, Rehana sought anticipatory bail in the courts. In her bail plea, she said that the allegations, prima facie, do not constitute any offence punishable which are non-bailable in nature.
On July 24, Justice P.V. Kunhikrishnan of the Kerala High Court dismissed her plea for anticipatory bail. The judge had, prima facie, observed that the video amounted to the obscene representation of children for the purposes of sexual gratification, attracting offences under the aforementioned Sections.
On Monday, Rehana filed a Special Leave Petition in the Supreme Court against the high court’s decision. In her petition before the apex court, Fathima submitted that nudity cannot be treated as obscenity.
The petition states that Rehana “while being semi-nude has allowed her body to be used as a canvas by her children to paint on and there can probably be nobody, except a pervert, who would be aroused to sexual desire by seeing the nature of the work.”
This very same nature of the work has proved instrumental in how Rehana’s attempt has come to be perceived. Asiaville reached out to experts from various fields to understand how the incident - and the subsequent course of events - has and will reflect the times we live in. And more importantly, how it will shape the future that the children of today will inhabit.
“Vulgarity in the eyes of beholder”
"Rehana is a woman of integrity. Having lost her father at a young age, she took up the responsibility of supporting her family. She shares a camaraderie with her husband Manoj that is almost unheard of in most marriages/ romantic relationships. She is adored by her children, loved by her mother-in-law and mother, alike. But this part of Rehana almost never makes it to the forefront, " says Radha Gomaty, artist and curator of EkaRasa, who has observed Rehana and her family closely. "To me, Rehana is a performing artist who places her life on the line and questions herself as much as she questions societal norms."
Seconding this, Dr. Jayakumari Devika, the Malayali historian, feminist, social critic and academician says, "Kerala does not know where to place the non-conformist Rehana.”
“She is a Muslim who discusses and reads widely about Hinduism, going so far as to adopt a Hindu name. She does not fall into the “dumb blonde down the street” or the “maternal figure next door” prototypes that society is conditioned to and comfortable with. The rage at the video also has roots in the fact that her non-conformist way makes a large section of society uncomfortable,” Devika says.
“As a historian I can identify those figures who contribute to our long term social democratisation, and Rehana is undoubtedly one of them.”
Speaking about the legal crossroads that the issue is currently at, Devika says: “If she is jailed, the conversation around the subject will grow shriller and you also cannot lock her up in a prison forever. Moreover, you may be able to imprison her, but her thoughts and ideologies aimed at long-term changes cannot be tied down. One cannot stop the process she has ignited, and that is the strength of cultural activism.”
Addressing the allegations of child abuse, Radha points out that it was Rehana's son who asked to draw on Rehana's body while the latter was resting due to an eye infection. The young boy was not forced into the act. Therefore, the agency is with the child and not with Rehana as is being made out. The same was also confirmed by Rehana in a recent interview, "My son draws and paints really well. He had asked me if he could draw on my body and I allowed it. If he grows up to be an artist, then what is in front of him, be it woman or man, he should be able to see it as a canvas."
Devika adds to this by noting that the choice of bird - the phoenix - drawn on Rehana’s torso was indicative of the progressive intent behind the video and the episode should, therefore, be viewed in its entire context.
“Vulgarity, like beauty, lies in the eyes of the beholder,” Devika says, adding that the reactions to the video in itself are proof of how society reacts to a woman who is aware and confident of her rights over her own body.
While stating that they strongly disagree with the sentiment that Rehana used her children for sexual gratification, Devika and Radha both say that society, at large, is viewing the issue through the Brahmanical lens of moral righteousness.
This thought also finds resonance in Rehana’s petition. She states in her petition that in Kerala, social agitations were required for women of certain lower castes to cover their breasts. Her counsel Renjith B Marar pointed out, “All the Goddess idols are bare-chested. When one prays at the temple the feeling is not of sexual explicitness but one of divinity. The morality of the most puristic Brahmanic society or the Society that craves to be traveling back to the pre-Constitution Brahmin dominated era cannot be the touchstone for deciding the Criminal act of indecency or obscenity. (sic)”
Not at the cost of a child
“We may be living in a world of grey but I cannot help but view this incident through the black and white lens of the rights of the child and sexual violence against children,” says Vidya Reddy, Executive Director of Tulir Centre for the Prevention and Healing of Child Sexual Abuse, Chennai.
“Just one look at the comments below the video shows us what the child is being exposed to, by virtue of being a part of the video. It offers an insight into the societal understanding of the issue, which in the context of this video was deeply disturbing,” she says.
She explains that the key to understanding how comfortable Rehana’s son is with the video lies in finding the answer to the question: “Would he be comfortable sharing with his friends that he had spent his weekend painting his mother’s bare upper torso?” She also says that if schools were open now, the 14-year-old could very well be bullied by his peers for the video.
Vidya further adds that we live in a highly sexualised world, and a predominant part of a child’s teenage years is the development of identity which also encompasses sexual development.
“You are curious about the manner in which your body is changing, in addition to physiological changes. So it is incorrect to view a fourteen-year-old as a non-sexual being. That all children are sexual beings is the fundamental of child rights. It is just that sexual development must occur in an age-appropriate manner. In this case, where are the boundaries for the child? Has the psychological impact of the video and its aftermath on the child been considered?”
“Not even for a minute am I implying that there was any sexual intent behind Rehana’s actions,” stresses Vidya. “But if we view the video divorced from the reasons attributed to the making and sharing of video, this could very well fall under the ambit of grooming*.” She further explains that gratification should not just be viewed through the lens of sex. “There is also the gratification of agenda, and using the child for the same is also exploitation.”
She also draws attention to the fact that there is no mention of agency (or the lack of it) of the child in the high court order- an omission that was hugely telling in itself.
(Grooming is when someone builds a relationship, trust and emotional connection with a child or young person so they can manipulate, exploit and abuse them.)
An old principle forgotten?
In the late 1970s, Justice VR Krishna Iyer said, “Bail is the rule and jail is an exception.”
Advocate and national trainer for POSH Act Dr Deepa Nair says that while granting bail is entirely based on the discretion of the judge, one is also faced with the question as to whether the courts have lost sight of the aforementioned principle.
She, however, says that Rehana is well within her rights to appeal to her apex court, which is precisely what she has done. She adds that whether or not Rehana is guilty cannot be determined by the bail order and a decision must be arrived at after proper investigation only.
“One must remember that the court clarified that its observations are prima facie in nature and should not have any bearing on the investigation or criminal proceedings,” Deepa says.
According to a LiveLaw report, while rejecting the bail application, the judge highlighted the important role played by mothers in shaping the morality and personality of their children by referring to quotes from Manusmriti and Holy Quran. The court also observed that the “expression of the petitioner, while the children are painting on her breast, is also important”.
Prashant Padmanabhan, a Supreme Court advocate, writes in The Leaflet, “While rejecting the bail application, the learned Judge of the High Court has discussed the merits of the matter and took great pains to explain as to how her conduct was not ideal. There is, however, no discussion on the jurisprudence of bail...The relevant questions the Judge ought to have asked are whether there is a chance that the accused would jump the bail if she was granted it and whether custodial interrogation is necessary at all? Those questions were neither raised nor answered in the order.”
“The most dangerous part of this “judgment” is in the last five pages. There is a long lecture as to the exalted position of a “mother” in our society. Stereotyping women as a tolerant mother has been the long practice of our patriarchal culture,” Padmanabhan notes.
At contentious crossroads
The case comes at a time when Kerala is battling multiple instances of child rights abuse.
In the last month alone, a defrocked priest sought bail to marry the minor whom he raped and impregnated (the survivor is now 20 years old); a BJP leader accused of sexually harassing a class 4 student was granted bail after sections of POCSO were removed from the chargesheet; and 66 students were reported to have died by suicide since March 25. Many also point to the fact that a man accused of sexually harassing his student was granted bail, even as Rehana is forced to move Supreme Court and Rehana's children are struggling to attend online classes after the police seized their laptop (and painting brushes) as part of evidence.
If Rehana’s intention was to expose the shallowness of the progressive wave Kerala is riding, or to bring conversations about female sexuality, nudity and morality to the dinner table and living rooms, then she has succeeded because, like Devika said, "irrespective of where the case goes from here, the conversation around it will only continue to grow."
When arguments about the greater good are thrown at Vidya, the child rights activist simply asks, “At whose expense?” In a country where most times the process is the punishment, that is an uneasy question waiting to be answered.
(Article title inspired by the book by Ian Gray & Moira Stanley on death penalty in United States of America)