TOPIC – OUTRAGING THE MODESTY OF WOMEN (ANALYSING SEC. 354 OF IPC, 1860)
The word modesty has not been defined straightforward in the code. There are though dictionary meanings of modesty but Supreme Court has also defined this term in different cases elucidate the words from case to case. In one of the case Supreme Court defined modesty as the essence of woman’s modesty is her sex. The culpable intention of the accused is the essence of the matter. The reaction of women is very relevant but its absence is not always determined. Modesty is an attribute associated with ultimate test for ascertaining whether the modesty of a women has been outraged, assaulted or insulted is that the action of the offender should be such that it may be appraise as one which is capable of shocking the sense of decency of a women. As dealing with the substantive question in the case of State of Punjab v. Major Singh¹ that, Whether modesty of a female child of seven and half months can also be outraged. The majority view was in the supportive. The court was of the opinion that Young or old, intelligent or halfwit, awake or sleeping, the women possess a modesty capable of being outraged. In one the other case Supreme Court said the women may be an idiot, she may be under the spell of anaesthesia, she may be sleeping, she may be unable to appreciate the significance of the; nevertheless, the offender is punishable for outraging the modesty.
In State of Kerala V. Hamsu², court held that the accused who attract the prosecution by winking his eyes in public and caught hold of her arm was guilty of outraging her modesty and can punished accordingly. Even gestures when they are made with the intention of outraging the modesty of a woman attract the section 354 of the IPC.
In Jagmal Singh V. State, the court held that since the intention of the offender could not be proved it was held that the appellant was wrongly convicted, so on appeal the conviction was set alongside unless the culpable intention is proved, mere touching the belly of a woman in a public bus cannot be called a planned act of outraging the modesty of a woman within the meaning of this section. In Ram Das V. State of West Bengal court said touching the belly of a girl is not culpable if it is not intentional merely putting the hand on the belly of girl cannot be interpret to indicate that the accused was using criminal force for the purpose of committing this offence or causing injury or indignation. It may be an attempt to draw the attention of the girl.
The court further said though the assault was there but the intention to outrage the modesty could not be proved. The High Court upheld the acquittal while agreeing that the behaviour of the accused was disgraceful as he had tried to chase the girl. So far as the offence under section 354 IPC was concerned the allegations are not sufficient to fulfil the necessary ingredient.
Section 10 of Indian Penal Code, 1860 gives a understandable definition of women, “A female human being of any age”.
So irrespective of age the woman’s modesty can be concluded as outraged if the acts falls within the sphere of interpretation of the honourable apex court.
Assault or criminal force to woman with intent to outrage her modesty—Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, [shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine.]
The offence is cognizable, non-bailable, triable by any Magistrate.
Essential ingredients of Section 354, IPC:
- Assaulted person must be women.
- Accused must have used criminal force.
- The criminal force must have been used with the intention of outraging woman’s modesty.
- Knowledge that modesty is likely to be outraged, is sufficient to constitute the offence without any deliberate intention of having such outrage alone for its object.
- Assaulted person must be women
There has been lots of shade and cry over the section being very much biased and been used constantly in a negative sense as well. Though there has been overabundance of cases where this particular section along with Sec.375/511/509 has been used against the men as a weapon of taking revenge but the weighty question of law is whether a women can be held liable for this particular section? The starting word of this section³, ‘Whoever’ makes this section a gender neutral section. This section is not gender specific, and the offender can be both male and female. The essential ingredient of this offence is an insult to the modesty of a woman. In other words, the facts and circumstance have to be considered in order to conclude whether the act caused the outrage of modesty or not.
But the question again lies if this section has been so gender neutral then how the section has been used us a pseudo weapon against men? Well, the answer lies there itself in the section. The starting word of sections 354A, 354B, 354C specifically mentions constantly the word ‘Any man’ which undoubtedly makes this section a gender biased section. Can be considered as an acerbity in this particular section.
- Accused must have used criminal force
In general terms or layman terms ‘molestation’ is the word basically used for section 354. When the acts of the accused causes insult to the modesty of a woman and there is threat of physical harm to her which also trauma the sense of modesty, the person can be accused under section 354. The primary objective of provision of Section 354 of IPC is to safeguard public morality and decent behaviour. In Surender Nath v. State of Madhya Pradesh⁴, court held that pushing the bell bottom pant or Chadar down that what is normally is an unceremonious behaviour. By differentiating Insult to modesty and outraging the modesty the court in Bankey v. state of U.P, the accused entered the apartment of a lady, caught hold of her and removed her garments, it was held by the court that he had intruded upon her privacy and was convicted for outraging the modesty of women. The essential element of the offence under section 354 is the element of criminal force or assault.
- Use of criminal force and mere knowledge of the act that modesty can be outraged by the said act
The provision of section 354 IPC has been sanction to safeguard public morality and decent behaviour. Therefore if any person uses criminal force upon any woman with the intention or knowledge that the woman’s modesty can be outraged, he is to be punished. In Vishaka v. State of Rajasthan⁵, and Apparel Export Promotion Council v. AK Chopra, the apex court held that offence related to modesty of women cannot be treated as trivial. Intention is not the sole criterion of the offence punishable under this section. It can be committed by a person assaulting or using criminal force to any woman, if he knows that by such act the modesty of the women is likely to be affected. Neither the use of criminal force alone nor act of outraging the modesty alone is sufficient to attract an offence under section 354 IPC, 1860. In Ramadas V. State of M.P., while attempting to snatch a gold ornament lying in the neck of the lady the accused had put his hand on her breast. When once he was unsuccessful he repeated the act, it can be presumed that he had full knowledge that his hand would come in contact with the breast of the lady and her modesty would be outraged. The second repeated attempt of putting the hand on the breast decisively proves the intention of the accused though the primary object may be to snatch the chain. The accused was punished because knowledge is sufficient to hold the accused guilty of outrages the modesty, the magistrate committed an misconception in ignoring this serious and vital aspect of law. The High Court set aside the acquittal and rejected the request for leniency holding that leniency in sex offences results in putting a premium and jeopardize the modesty of the weaker sex.
Sexual Harassment at Work Place
Harassment of women at work place ‘sexually’ has been a very major problem not only in our country but is a global problem. There has been countless number of cases where the harassment of women by their colleagues or other higher ranked officers has come to light. In 1993 at the ILO Seminar held at Manila, sexual harassment of women at work place was recognized as a form of gender discrimination against women. Supreme Court in Apparel Export Promotion Council v. A.K. Chopra⁶, defined sexual harassment at work place as―Sexual harassment is a form of sex discrimination forecast through unwelcome sexual advances, request for sexual favours and other verbal or physical conduct with sexual connotation, whether directly or by implication, particularly when submission to or rejection of such a conduct by the female employee and unreasonable interfering with her work performance and had the effect of creating an terrify or hostile working environment for her.
India being the signatory authority of CEDAW⁷ comes under the international obligation of protecting women from all kind of discrimination. CEDAW and Beijing Declaration directs all state parties to make appropriate provisions to protect the right of women and terminate all types of discrimination against women. Article 7 of The International Covenant on Economic and Cultural Rights recognizes women’s right to fair conditions of work and consider that women shall not be subjected to sexual harassment at the place of work which may invalidate working environment.
The Supreme Court in Vishakha v. State of Rajasthan⁸, addressing a PIL filed by women activist group Vishakha the court to give definite directions regarding the sexual harassment that women face at the work place. The basic objective behind this PIL was to make the true awareness of concept of Gender Equality and to prevent sexual harassment of women at work place.
Definition of Sexual Harassment given by the Supreme Court
The Supreme Court in Vishakha Case has defined sexual harassment. The court suggest that sexual harassment includes such unwelcome sexual determined behavior (whether directly or by intimation) – ⁹
- Physical Contracts and advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical verbal or non-verbal conduct of a sexual nature
We came across many of nuisances of law how Supreme Court has elucidated the term modesty in different cases. In one of the case SC has interpreted as the word modesty is an aspect associated with female human being which reflects a particular class. It is a virtue which is attached to a female on account of her sex. The word ‘modesty’ is not to be elucidated with reference to a particular victim of an act but rather it is to be interpreted as an aspect associated with female human beings of a class. Section 354 talks about use of criminal force and assault to women with the intention of outraging the modesty of women on. As per the Justice Verma Committee Report, definite modifications were done under Section 354 and Section 509 of the IPC. The committee has also suggested that the use of words, acts or gestures that creates an unsolicited threat of a sexual nature shall also be termed as sexual assault and should be punishable for 3years imprisonment or fine or both.
State of Punjab v. Major Singh, AIR 1967 SC 63, Rupan Deol Bajaj v. KPS Gill, AIR 1995 SCC 194
² State of Kerala V. Hamsu 1988
³ Section 354, Indian Penal Court, 1860
⁴ Surender Nath v. State of Madhya Pradesh 1982
⁵ AIR 1997 SC 3011
⁷ Convention on the Elimination of All Forms of Discrimination Against Women,1979
⁸ 1997 (6) SCC 241
⁹ It was finally added as Section 354 – A with Criminal Law Amendment, 2013.