JUDGMENT
B. Sudershan Reddy, J.
1. This writ petition has been taken on file on the strength of a representation dated 23-10-2000 made by a practising Advocate of this Court, Sri Nandigam Krishna Rao, to the Honourable Dr. Justice Motilal B. Naik. The said representation itself is based upon a news-item that appeared in VAARTHA Telugu Daily, Sunday Supplement, dated 22-10-2000.
2. The purport of the said representation as well as the news-item relates to the high-handed action of the Jawaharlal Nehru Technological University (JNTU). It is alleged that the University indulged in the heinous act of exploiting the body of a tribal woman. The said tribal woman was made to expose her body nudely before the students learning fine arts, in lieu of a meager consolidated daily wage. Thereafter, she has been appointed as a Sweeper in the University on a consolidated pay of Rs. 900/- per month. Her services are being utilised without any regularisation whatsoever. It is alleged that the said tribal woman, in the circumstances, continuously exposed her body before the students of fine arts with a fond hope that one day or the other her services would be regularised by the University either as a model or in the same job into which she was appointed on consolidated pay.
3. The main grievance, as is evident from the representation made by the learned Advocate, relates to the inaction on the part of the University in regularising the services of the said tribal woman even after a long lapse of time. It is also stated that the action of the University in inducing the said tribal woman to expose her body nudely infringes her fundamental right guaranteed by Article 21 of the Constitution of India. Such high-handed action on the part of the University has resulted in violation of her right to live with dignity. The ultimate prayer made in the said representation is to direct the authorities to regularise her services. The representation is made available a copy of the news-item published with caption “Nava Nagarikapu Nagna Namoona” (An example of nudity of modem culture).
4. The matter was heard on several occasions by more than one Division Bench. Having regard to the nature of the allegations, the Court appointed Ms. M. Pramada, learned Advocate and Special Government Pleader attached to the office of the learned Additional Advocate General to make an enquiry, including interviewing the women in general and the woman in question particular and submit a report to this Court. Another Division Bench, consisting of the Honourable Chief Justice and V.V.S. Rao. J, by its order dated 25-7-2001 requested the learned Chairperson of the A.P. Women’s Commission, Hyderabad to conduct a thorough enquiry in the matter.
The Division Bench felt that, since the matter relates to the alleged sexual exploitation of the victim and similarly situated persons at the hands of the authorities of the University, the same has to be thoroughly investigated.
5. The learned Advocate-Commissioner and as well as the Chairperson, A.P. Women’s Commission have submitted their respective reports. We have two affidavits – one filed by the Registrar of the University and the other by the Principal of JNTU College of Fine Arts. During the course of hearing of this writ petition, the victim herself now aged about 41 years, filed an affidavit.
6. Sri Nandigam Krishna Rao having made the representation to this Court continued to appear in person to assist the Court.
7. We have elaborately heard the learned Standing Counsel for the respondent-University and as well as the Advocate-Commissioner.
8. Sri Krishna Rao, would submit that the victim, on account of her poverty, has undertaken this ordeal of exposing her body before the students of the College of Fine Arts, JNTU and the same was not a voluntary act on her part. The wages paid by the University in lieu of the services rendered by the victim were too meager. She was entitled for reasonable wages and regularisation of service after her appointment as a gardener in the College. Sri Rao also would contend that the victim being a tribal woman has been subjected to exploitation by the authorities of Fine Arts College and the same may even amount to sexual exploitation of a helpless tribal woman, who on account her poverty was forced to undertake the job of modelling.
9. Sri C. Kodandaram, learned Counsel appearing for the respondent-
University submits that the University never indulged in any act of exploitation. The woman has voluntarily undertaken to pose herself in nude before the students of the Fine Arts College. Exhibition of a nude human body, in the given circumstances, for the students of the College of Fine Arts cannot be equated to that of any sexual exploitation. She has never been subjected to any sexual exploitation. People belonging to various strata of the Society offered their services and volunteered to pose themselves in nude enabling the students to learn painting, for which basic knowledge of human anatomy is a must. It is also submitted that the question of regularisation of service of the victim has no relevancy whatsoever to the issue of alleged exploitation. Regularisation of services depends upon variety of factors and circumstances, such as availability of posts etc. It is submitted that but for the legal impediments, the College and the University had no objection whatsoever for regularising the services of the victim in the post into which she was appointed. The appointment itself was the result of lenient and compassionate view taken by the respondent-University.
10. In order to consider the question as to whether the victim has been subjected to any exploitation of whatsoever nature, we propose to notice the averments made in the affidavit filed by the Principal of JNTU College of Fine Arts explaining the nature of studies and the courses offered by the University to Fine Arts students. There is not much of controversy as to what is stated in the affidavit filed by the Principal of the College.
11. The College offers Bachelor of Fine Arts in Applied Arts, Painting, Sculptures and Photography. The said course is a four-year course. Earlier to 1996, the college offered five-year degree course with ten semesters. All the courses offered by the
College are recognised by the All India Council for Technical Education (AICTE). The advance study of human body begins only in the 4th and 5th year of the course. The study of human body is taught in 9 schedules of one week each spread over the academic year consisting of ten months. The study of human body includes – study of portraiture up to bust, full-figure life study with clothes, full-figure life study with semi nude and full-figure life study – nude. Full figure life study is taught only in the final year. It is admitted that the college engages models for all the said purposes, which include, draped, semi-nude and nude.
12. It is asserted that the college in its history never engaged any minor children as nude models. The services of beggars were never utilised as nude models. There is no element of any coercion or duress in the matter of hiring of the services of the models. The college maintains the record vouchers of payment made to the models and the voucher slip inter alia contains information with regard to the name of the model, class for which the model is being engaged, nature of modelling, date and time. The voucher is required to carry approval of class teacher, Head of the Department and the Principal. However, the voucher slip does not contain any information with regard to the age and social background of the model. There is no set procedure as such followed for procuring the services of models. In most of the cases, models themselves get people known to them.
13. It is, however, stated that the victim-lady was first engaged as model in the year 1979 as draped model. The record reveals that for the first time she sat as nude in the year 1981. She offered her services to sit as model in the College since 1981 till 1998 depending upon her convenience and availability of work in the College. During the same time, the services of many more models were also utilised. As at present, the rate for a draped model and semi-nude is Rs. 20/- per hour. However, due to changes in the syllabus, the College is not engaging any nude models as at present.
14. The Registrar of the University in his affidavit states that engaging of models for the purpose of education to the students of Art is necessary inasmuch as a student of Art will have to get exposed to the different facets of the life study including anatomy and human structure. This subject in different names as draped and undraped, nude, semi-nude is found in all the Fine Art Institutions in India and world over. The Registrar compares that the life study of anatomy and human structure in the Fine Arts Colleges in the course of imparting education in the said subjects is akin to that of the same subjects in medical education. It is stated that such study under no circumstances can be equated to that of any exploitation of human body.
15. However, it is further stated that the respondent-University engaged variety of people for modelling and they come from various sections and segments of the Society including the professional models, executives and also students and teachers of the respondent-University itself. It is, however, conceded that sometimes, the services of labourers and even beggars were utilised when they have offered their services voluntarily.
16. It is further stated that till the date ever since the existence of the institution, i.e., for the past more than fifty years, there has been no complaint from any quarter whatsoever about any ill-treatment of models engaged by the respondent-University. There has been no complaint of any obscenity, coercion or exploitation of whatsoever nature.
17. The same remuneration, as was paid to all other models who offered their
services for the purposes of imparting practical training to the students in the Fine Arts College, has been to the tribal woman, with whom we are concerned for the present in this writ petition. She voluntarily stopped to modelling from 1998 and there is no occasion for the University to engage her services thereafter.
18. The Principal, on humanitarian consideration, having considered the request of the said tribal woman asked her to work as a gardener on daily wages. The said decision was taken purely on humanitarian consideration and as at present she is being paid Rs. 1,400/- in lump sum.
19. As at present, her services cannot be regularised inasmuch as there is no permanent post of gardener in the University. The recruitment itself was made not in accordance with the Rules, but purely on humanitarian grounds.
20. We have given our anxious consideration to the rival submissions made during the course of hearing of this writ petition and perused the entire record including the averments made in the affidavit, counter-affidavits, and reports submitted by the Advocate-Commissioner and Chairperson, A.P. Women’s Commission.
21. The approved academic regulations for four year Bachelor of Fine Arts Degree Course and the syllabus thereof reveal the life study being one of the important subjects, both in theory and practicals. The life study includes study of human figure in round -various postures – male and female form -head study–bust, half or full-size figure -study of human anatomy includes various postures of the human body. The practicals include advance study from life – male and female form – draped and undraped figures in different postures and actions. It also includes advance study from life – male and female figures with emphasis on the study of human anatomy – study of individual character – tonal variations – texture, colour etc. It is an integral study of the life study. It is an approved course of stud/ by the AICTE. The Fine Arts College and the University themselves are the institutions of learning. Modelling and one’s own presentation of body in semi-nude or nude for the benefit of the students learning Fine Arts and life study per se would not amount to any exploitation and much less any sexual exploitation.
22. Unlike the freedom to be extended to the commercial exploitation of a powerful medium of expression and entertainment like the cinema, we believe that a novelist or a painter or a musician should be free to write, paint and compose music without the interference of the State machinery. Study in Fine Arts, Sculpture and Photography encompasses the creative expression.
23. The Supreme Court in Ranjit D. Udeshi v. State of Maharashtra, (1965) 1 SCR 63, held that the “artistic as well as inartistic presentations cannot be treated alike and the watchful eves always should discern as to what may be socially good and useful and what may not,” The Supreme Court laid down certain principles on which the obscenity of a book was to be considered with a view to deciding whether the book should be allowed to circulate or withdrawn.
24. In K.A. Abbas v. The Union of India and Anr., , the Supreme Court while approving the said principles held that “those principles apply mutatis mutandis to films and also other areas besides obscenity.” It is observed that “treating with sex and nudity in art and literature cannot be regarded as evidence of obscenity without something more.” Hidayatullah, C.J., speaking for the Constitution Bench observed that “the requirements of art and literature include within themselves a comprehensive view of
social life and not only in its ideal form and the line is to be drawn where the average moral man begins to feel embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius or social value…..In our scheme of things ideals having redeeming social or artistic value must also have importance, and protection for their growth. Sex and obscenity are not always synonymous and it is wrong to classify sex as essentially obscene or even indecent or immoral. It should be our concern, however, to prevent the use of sex designed to play a commercial role by making its own appeal.”
25. In Raj Kapoor v. State, , Krishna lyer, J., speaking for the Bench observed that “art, morals and law’s manacles on aesthetics are a sensitive subject where jurisprudence meets other social sciences and never goes alone to bark and bite…….The world’s
greatest paintings, sculptures, songs and dances, India’s lustrous heritage, the Konaraks and Khajurahos, lofty epics, luscious in patches, may be asphyxiated by law, if prudes and prigs and State moralists prescribe paradigms and proscribe heterodoxies.”
26. The issue raised in the writ petition is required to be considered as a whole in a fair, free and liberal manner. If so considered the presentation of one’s own body in nude before the students learning Fine Arts cannot itself be viewed as vulgar and not necessarily as an obscene one. Such presentation of one’s own body has no effect or tendency to deprave and corrupt the minds. There is no act of denigrating or degrading woman in any manner is involved. Any other view in the matter, in our considered opinion, may amount to unduly curbing the artistic expression and creative freedom of the students undergoing the courses in Fine Arts, Sculpture and Photography.
27. The next question that falls for consideration is as to whether the staff working in the respondent-University sexually exploited the said tribal woman under the guise of hiring her services as a nude model?
28. During the course of hearing of this writ petition, no doubt, the tribal woman (Smt. Bikku) filed an affidavit stating that she was sexually exploited by the authorities. It is stated that for the last twenty years her services were utilised by the respondent-University as a nude model and she was made to sit at least for 5 to 6 hours every day for the entire week and she was made to work elsewhere as Sweeper/Cleaner in the same college whenever there were no classes either in painting or sculpture department. It is alleged that the respondent-University “in toto has exploited me by making me to believe that my services will be regularised ………..It is relevant to submit that for all
these years I have worked as nude model and as Sweeper/Cleaner right from the date of joining the service at the University. I have to do so with the hope that my services will be regularised as such an impression was given by the authorities to me from time to time and they prompted me to do so under the guise of regularisation of my services.”
29. The allegation of the respondent-University sexually exploiting the tribal woman is vague. Perhaps, what she means sexual exploitation is in relation to her offering to be a model. Even the averments made by the victim herself do not reveal of any sexual exploitation. In her application dated 26-8-1997 addressed to the Principal, JNTU College of Fine Arts, there is no allegation of any sexual exploitation. In the said application, she requested to consider her case sympathetically and on humanitarian grounds to provide a suitable job even on daily wage basis.
30. In the report submitted by the Advocate-Commissioner, it is stated that Smt. Bikku has acted as a model out of her own volition and without any coercion whatsoever from the University. Her grievance appears to be with regard to the regularisation of her services. Knowingly or unknowingly she was under the impression that she will be given some job. May be with that fond hope she has undertaken to act as model on her own.
31. In her statement before the Advocate-Commissioner, the victim stated that in fond hope of getting employment in the institution she has acted as a nude model, as one Laxmi who acted as nude model has been appointed as Attender. In her statement before the Advocate-Commissioner, she mainly highlighted her grievance with regard to the regularisation of her services. She admits that she was never teased or put to any ridicule or insult at any time when she was acting as model. She in categorical terms admits that the Lecturers did not misbehave with her at any point of time.
32. It is also admitted that she was prompted by a reporter to reveal her past life and the same was published in the magazine. The statements recorded by the Advocate-Commissioner of other women, who have earlier acted as models, also do not reveal of any acts of outraging modesty or sexual exploitation while they were working as models in the Fine Arts College.
33. The Chairperson of A.P. Women’s Commission having made an enquiry into the matter, pursuant to the directions of this Court, came to the similar conclusion that there is no evidence regarding the sexual exploitation, except the self-interested sole testimony of the victim made during the course of enquiry. The Chairperson came to the conclusion that the allegation of
sexual exploitation indirectly made against the Principal, for the first time, has no credibility since the victim herself admitted that she will withdraw the allegation if her services are regularised. We do not find any reason to disbelieve or reject the said report. Suffice it to notice that even the affidavit filed by the victim during the course of hearing of this writ petition does not contain any serious allegation of sexual exploitation. The whole thing centers around the victim’s claim for regularisation of her services in the post in which she is working at present in the college. It is not uncommon that the gullible individuals are sometimes mislead by the more articulate sections and vested interest. We do not propose to make any further comment on this issue.
34. The next question that falls for consideration is as to whether the said victim – Smt. Bikku has been subjected to any forced labour?
35. Article 23 of the Constitution of India prohibits “forced labour” and provides that any contravention of such prohibition shall be an offence punishable in accordance with law. That Article reads thus:
“23. Prohibition of traffic in human beings and forced labour :–(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law,
(2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.”
36. The said Article guarantees the fundamental right against exploitation and prohibits three unsocial practices: (1) traffic in human beings, (2) begar and (3) similar forms of forced labour.
37. In People’s Union for Democratic Rights v. Union of India, , ihe Supreme Court observed that “forced labour may arise in several ways, it may be physical force, it may be force exerted through a legal provision such as the provision for imprisonment or fine in case the employee fails to provide labour or service or it may even be compulsion arising from hunger and poverty, want and destitution.” It is observed that “we are, therefore, of the view that where a person provides labour or service to another for remuneration which is less than the minimum wage, the labour or service provided by him clearly falls within the scope and ambit of the words ‘forced labour’ under Article 23.”
38. It is further observed that “the word “force” must therefore be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service even though the remuneration received for it is less than the minimum wage.”
39. An attempt has been made by Sri Krishna Rao to contend that the victim accepted to render the services as nude model on account of her acute poverty. It is under those circumstances she was “forced to undertake the job”.
40. But the question that falls for consideration is as to whether the respondents have paid any wage less than the minimum wage?
41. It is not brought to the notice of the Court that any minimum wage as such has been prescribed for the services rendered by the victim as nude model. On the other hand, in the counter-affidavit it is stated and about which no dispute is raised that there has been no discrimination in the matter of payment of wages/fee. Same
amounts were paid to all those individuals whoever offer their services as models. It may be true that on account of acute poverty and perhaps unable to find any suitable employment for herself the victim may have agreed to pose herself as nude model in the class rooms. That itself may not amount to forced labour as such within the meaning of Article 23 of the Constitution of India. It is a different matter altogether that the said tribal woman has been a victim of appalling prevalent poverty conditions. In the circumstances, we are not inclined to accept that the said tribal woman has been subjected to any forced labour.
42. What remains for our consideration is as to whether the said tribal woman/ victim is entitled for regularisation of her services?
43. She has been appointed on daily wage basis and as at present is being paid consolidated salary of Rs. 1400/- per month. Admittedly, it was not a regular selection and appointment by any properly constituted Committee. The University and the College are willing to consider the case of the said victim for regularisation of her services as and when vacancy arises. It is the case of the University that the services of the individual cannot be regularised in view of the legal constraints inasmuch as such regularisation is prohibited by Act 2 of 1994.
44. For the aforesaid reasons, no relief as such could be granted in this writ petition except to observe that the respondents shall consider the case of the victim for regularisation of her services as and when she lawfully gets entitled for such consideration.
45. With the observation as above, the writ petition is disposed of. No order as to costs.