The Indian Penal Code, 1860 is the substantive law that lays down the offences and the punishments therein. Despite being an archaic law it has been in implementation for more than a century. One of the provisions, Section 354 states that whoever assaults or uses criminal force to any women with the intention or knowledge that it is likely to thereby outrage her modesty shall be liable to be punished with imprisonment for a term which may extend to two years or with fine or with both
What constitutes outraging the modesty of a women is not defined in the Code but can be inferred from the interpretation of the Supreme Court and the High Courts.
The Supreme Court of India has, on various occasions, elaborated on what modesty of a woman means. According to a bench comprising of Arijit Pasayat and S.H. Kapadia, “Modesty is a virtue which is inherent to a female owing to her sex; an attribute associated with female human beings as a class”.
The Courts have time and again observed that a woman, young or old, intelligent or imbecile, awake or sleeping, possesses modesty, which is capable of being outraged. Modesty of a woman is outraged when the act of the offender is such that it is shocking and can be perceived as an affront to feminine decency and dignity. Example: slapping a woman on her butt, disrobing her, asking her for sexual favour etc.
Mere knowledge that the modesty of a woman is likely to be outraged is sufficient to constitute the offence without any deliberate intention of outraging her modesty. Section 354 will apply to all sexual acts committed or intended against a woman that stop short of penetration.
It has also been observed that lack of protest by a woman cannot be an alibi for the “offender” who has “outraged her modesty”. The landmark judgments by the Apex Court in the matters of Vidyadharan v. State of Kerala and Rupan Deol Bajaj v. Kanwar Pal Singh Gill, where super cop K.P.S. Gill was convicted for slapping on the posterior of the Petitioner, truly highlights the precarious nature of male chauvinism towards women wherein this Section comes into rescue.
However, the wording of the Section provides a very wide ambit to interpret what constitutes the threshold of intention or knowledge required for outraging modesty. For instance, in a decision by the Bombay High Court in 2014 against one Mahendra Chate where it goes on to say “Even if you keep your hand on the shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly,”. This type of interpretation nullifies the very purpose of Section 354, wherein the intention or knowledge is required to be determined from the perspective of the man who allegedly assaults or uses criminal forces and then arrive at a conclusion as to whether the said act would have amounted to outraging of modesty.
Such sweeping statements made by Judges tend to make such empowering provisions nothing more than instruments of scapegoating innocent males.
In the matter of Arnesh Kumar v. State of Bihar & Anr, the Supreme Court ruled that persons implicated in the anti-dowry law (Section 498 A IPC) can no longer be “automatically” arrested before a proper probe has taken place. This was to keep in check women who were lodging false cases against their husbands and in-laws. Therefore, the same qualification may also be applied to Section 354 IPC.
The Bombay High Court judgment of 2014 warns that inability to carefully consider the intent of the law, and assess the weight of an individual complaint afflicts our courts across the board. This results in a bewildering variety of verdicts which rely not on true jurisprudence but the arbitrary interpretation of the individual judge. Where one can decry sex before marriage as immoral, the other can deem a hand on the shoulder as potentially sexual. One set of High Court judges can overthrow Section 377 while another pair at the Supreme Court can reinstitute it with equal ease. The result is a judicial system that fails to protect the spirit and intent of the laws it is entrusted to uphold. Justice becomes just another game of Russian roulette, luck of the judicial draw.