AN ANALYSIS OF ‘MODESTY’ OF WOMAN VIS-À-VIS SECTION 354 & SECTION 509 OF THE INDIAN PENAL CODE, 1860
Updated: Oct 22, 2020
By Priya Ganotra
A woman has absolute autonomy in her body. It is the ultimate right of a woman to conduct herself in any manner that she wishes to, provided it is permissible under law. However, in the patriarchal world that women have been raised in, many men have objectified women and used their supposed higher status in society to subject them to oppression. Over the years, a crime against women has increased.
The nature of these crimes is inclusive of offences like rape, kidnapping, abduction, dowry death, assault, trafficking, cruelty by husband and relatives, honour killing etc. Crimes like rape, molestation, human trafficking, sexual abuse, harassment are specific crimes that outrage the dignity of a woman. A form of this oppression also includes disrespect and outrage of a woman’s modesty. The Indian Penal Code, 1860 (hereinafter “Code”) in no particular manner has defined the word ‘modesty’ or given its accurate meaning. In the case of Ramkripal Singh v. State of Madhya Pradesh, the Hon’ble Supreme Court of India (hereinafter “Supreme Court”) said that for a woman, her sex is considered to be an essence of her modesty. It is said that to respect the modesty of a woman is nothing extraordinary but makes up to be the basic human decency every individual should be treated with.
The two prominent sections in the Code that analyze the meaning of the term, are §354 and §509. Section 354 of the Code talks about the use of assault or any criminal force upon a woman to outrage her modesty. The section says that an individual who uses means of assault or criminal force to harm a woman’s modesty or does any act with the knowledge that such act can likely result in the outrage of modesty of a woman shall be held liable and be punished with imprisonment for a term extending up to two years, or fine, or both. The culpable intention of the accused is the crux of the matter under §354. It associates the modesty of a woman to female human beings in a class. In the matter of Aman Kumar Gupta & Anr. v. State of Haryana the Supreme Court attempted to describe modesty as a quality of being modest in relation to a woman, “woman propriety of behaviour; scrupulous chastity of thought, speech and conduct”. The application of the section is generally made when the acts of the accused go beyond using insult or annoyance to the modesty of a woman, and there is a clear threat of physical harm to her which also shocks the sense of modesty. The ultimate test for whether the modesty of women has been outraged, assaulted is that the action of the offender should be such that it may be perceived as one which is capable of a shocking sense of decency of a woman as viewed in Aman Kumar’s case and Ramkripal Singh v. State of Madhya Pradesh. The section stands firm on the fact that the word ‘modesty’ is not to be interpreted concerning a particular victim of an act only, but as an attribute associated with female human beings of a class. The section also establishes sufficient arguments that the modesty of a woman can be outraged in case of deliberate intention or with the presence of such likelihood.
When it comes to interpreting the word ‘modesty’, section 509 primarily deals with the use of any form of words, gestures, or any other misconduct to harm or insult the modesty of a woman. This section is famously known as the ‘eve-teasing’ section. The object of the section is to protect the modesty and chastity of a woman. In the world we live in, eve-teasing has become pernicious, horrid and disgusting practice against women. Unfortunately, it is one of the most common types of harassment a woman has to face in India. In India, eve-teasing is inclusive of verbal eve-teasing, physical eve-teasing, sexual harassment, and harassment through an object. To attract liability under §509, the accused must utter any word, or make any sound or does any gesture or even exhibit any object or intrude the privacy of a woman and such act of the accused was seen or heard by the woman. This offence mandatorily has to be directed towards a woman or group of women. The case of Santha v. State of Kerala established ‘intention to insult’ as an essential element of this section. Further, the intention to insult the modesty of woman must be coupled with the fact that the insult is caused. It means that the other party understands that insult has been done. To summarize, §509 stipulates offences that can cause an insult of modesty of a woman and is confined to gestures and acts that are done to insult the modesty of a woman.
Public morality and decency form essential elements of society. Sections 354 and 509 were inserted in the Code to protect morality and decency in the society. It was given the view that crimes against women are not just crimes against a specific gender, but also crimes against the society at large. These sections exclusively apply to women with the presumption that every woman is modest and any violation is nothing less than the outrage of her modesty. The offence committed in these sections is cognizable, bailable, non-compoundable, and triable by a magistrate of the first class.
In India, women constitute a large number of the population. Hence, protection under the abovementioned sections was rightly accorded to them. It is evident that the Code, in no manner, has defined the term ‘modesty’. The creation of these sections was backed by the need to protect the modesty and chastity of a woman in a patriarchal society. The most general application of the term says that the essence of the modesty of a female is her sex. It is a virtue attached to her which is permanent and no defence of caste, creed, religion, age or age for that matter can devoid a woman of this essence. The sense of ‘shock’ that she is expected to feel is not a significant detriment of whether she feels violated at all or not. A woman’s modesty is a permanent attribute she beholds and defence of age or any expected reaction is irrelevant to the matter whether she feels violated or not. It is imperative for the Indian society to accept that modesty of a woman is unquestionable and needs to be protected in the interest of her respectful existence in society and public morality.