OFFENCE OF OUTRAGING THE MODESTY OF A WOMAN: BRIDGING THE GAP BETWEEN THE LAWS AND GROUND REALITY BY: DISHA BAIS

OFFENCE OF OUTRAGING THE MODESTY OF A WOMAN: BRIDGING THE GAP BETWEEN THE LAWS AND GROUND REALITY

AUTHORED BY: DISHA BAIS

B.A.LL.B. (HONS.)

Maharashtra National Law University, Nagpur

Abstract

Crimes against women have been an ever-growing concern in India and the offence of outraging the modesty of a woman is a part and parcel of the same issue, despite the existence of numerous legal provisions, there remains a significant disparity between the laws on paper and their effective implementation creating a wide gap which comprises of repudiating societal attitude, systemic challenges surrounding the legal framework. The main objective of this essay is to understand and convey the meaning of the word ‘modesty’ and the nature of its legal connotation and to comprehend and analyze the legal framework associated with the offence of outraging modesty of women while discerning the intricacies of this law by analyzing case studies and apposite literature to put forth relevant suggestions. It also emphasizes on the need for law reforms for crimes against women in India and particularly the offence of outraging the modesty of a woman as it is crucial to address the pervasive and persistent issues of gender-based violence, ensure justice for victims, and foster a safer society, promoting gender equality and the protection of women's rights.

KEYWORDS: Systemic challenges, legal framework, modesty, gender-based violence, law reforms.

INTRODUCTION

The nexus of legal recourse for outraging the modesty of women is section 354 of IPC 1860. Its violation occurs when an individual assaults or uses unlawful force against a female with the intent of offending or knowing that doing so is probably going to offend her modesty. However, what constitutes an outrage to female modesty is nowhere defined in IPC[1]. The Honorable Supreme Court in Ramkripal v. State of Madhya Pradesh (2007) stated that the essence of a woman's modesty is her sex[2]. The word ‘modesty’ should not be understood in terms of a specific victim of an act, but as an attribute associated with females which denotes a particular class[3]. It is a virtue which is attached to a female on account of her sex[4].

Despite there being certain definitions and provisions present in our legal system, according to data shared by Delhi Police, crime against women in the Capital increased by 63.3% in the first six months of 2021 as compared to 2020[5]. Thus in order to build an understanding of the aforementioned offence, it is essential to delve deeper into the recent developments, which have added to the meaning of this offence.

While discussing the legal discourse of the offence relating to outraging the modesty of women, it is essential to understand the meaning of the word ‘modesty’. The American Psychological Association explains the idea of modesty, the influences that shaped it, and its current state. According to one definition, modesty is an innate fear having a sexual nature that causes one to cover up their body. It affects people of both sexes. Along with the fundamental element of fear, modesty also comprises other feelings like shame, shyness, etc. It has been said to be the outcome of the interaction between a person's social instincts and puberty

Although law has a very dynamic structure, it is still prone to having certain grey areas, which makes researching and recognizing them extremely important. Moreover, this essay suggests reforms to improve the provisions with changing times, with particular relevance to the in-depth meaning of assault, criminal force, and other relevant terms.

THE LAW AND ITS CONNOTATION

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by 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][6].

Force has been clearly defined in the IPC, according to the definition of force provided by Section 349, if a motion is caused or if there is a change in motion or a cessation of motion that could affect another person's experience of feeling, it becomes force. Moreover, when there is intentional use of force or knowledge of the same, it becomes criminal force. The acts done without any physical force such as stalking are also being covered under the provision of outraging the modesty of women [7]because of expansion and extension of the ambit of the offence.

Section 354 of IPC provides for the punishment of the offence of assault or criminal force which isn’t of the nature of grave and sudden provocation. Also, mere words do not amount to the violation of the aforementioned provision, however if certain words are being used to threaten the victim with an immediate intention to use criminal force would then directly make the accused liable for the offence.[8]

According to section 509, the law incorporates usage of vulgar language in writing, such salacious gestures and figures, singing songs with lewd implications, and exposing her nude body. Recently, there was a backlash over an incident which occurred in Kerala’s Kollam, girls were forced to remove their innerwear before NEET exam at the examination center. Following the uproar, seven persons were arrested in relation with the case. The accused were consequently charged under section 509 (word, gesture or an act) along with section 354 of the IPC i.e. assault or criminal force to a woman with intention of outraging her modesty[9].

While an offence under Section 354 is punishable by a fine or up to 2 years in prison, or both, an offence under Section 509 is penalized by a fine or up to 3 years in prison. While the offence under Section 354 is cognizable and not subject to bail, the offence under Section 509 is cognizable, subject to bail, and subject to compounding with the court's approval.

SHORTCOMINGS OF THE LAW AND ITS IMPLICATIONS

 “The snag lies not in the laws themselves as we call them “loopholes” but the much anticipated upshots are knocked down by the failure to interpret in the intended perspective.”

― Henrietta Newton Martin

In today’s times, the laws relating to crimes against women are of immense importance. India sure has made progress in the sphere of preventing and bringing justice to women, but it wouldn’t be entirely wrong to say that we still have a long way to go. Making and implementing a foolproof law is a very unrealistic and utopian concept especially in a diverse country like India. It is understood that laws are a dynamic conception, it shall be reasonable to strive to understand the prevailing faults in the law itself and its implementation followed by working on such solutions.

• The Kerala High Court, in October 2022 while passing the interim order, observed that the findings of the sessions court that Section 354 of the Indian Penal Code (IPC) would not prima facie stand against the accused as the victim was wearing sexually provocative dresses could not be justified.[10] In reply to this, the appeal argued that the sessions court had flouted all guidelines governing the granting of bail to suspects in sexual assault cases. In reality, the Supreme Court has already ruled that while granted bail to the accused, comments about the accused's attire, demeanor, past "conduct," or morals should not be included in the decision. The session’s judge's observation constitutes judicial misconduct and is subject to expungement.
• The position tends to stand in extreme degrees of different situations. Contrary to the exploitation and abuse of the law by women, it has been observed that many cases of outraging modesty go unreported in some incidents, and women tend to suffer as a result[11]
• In the aspect of cross examination, it has been observed that such crimes frequently cause suffering for the victims at the expense of the offenders. According to Section 141 of the Indian Evidence Act, leading questions are defined as any questions that often elicit the intended response from the witness being cross examined. According to according to the ruling in the landmark case of Mohinder Singh v. State. The purpose of the cross-examination of a rape or molestation victim is not to humiliate and cause discomfort; rather, the questions should simply aim to bring out the truth and should not be directed towards causing embarrassment and discomfort.
• Fraudulent usage of the aforementioned laws is a prevalent issue, as the laws were made highly women-centric so as to protect women from such crimes but this affirmative policy has also backfired. The burden of proof rests with the man to establish his innocence. Furthermore, according to the ruling in Lalita Kumari v. Government of U.P., if a woman wants to file a FIR against a man under such circumstances, the police must do so, even if it is mala fide[12]

REPARATORY REMARKS

From the observations cited, It can be is actuated to conclude that there is a dire need to strike an equilibrium in the implementation of these laws, it is well understandable that the laws made for crimes against women have to be inherently women-centric or else they would defeat their purpose but the ongoing misuse of the provision is further deteriorating the issue. There is a section of women who do not file a complaint against these crimes and then there is another section of women who are filing fraudulent complaints. Such false complainants not only degrade their rights but also create a false narrative against victims of such offences in the society.

The cited Kerala High court observation clearly implies that there has been a lack of actual assessment of the entire issue as a whole in its great depth. this fallacy of failing to carefully consider the intent of the law and gauge the weight of a particular person's complaint is what affects the courts across the board. In addition to being callous, offensive, and anti-women, the court's findings may have traumatized the survivor. The appeal argued that the offensive statements made by the court had to be removed from the order because keeping them in would damage public confidence in the legal system.

It is essential to understand that mere knowledge that the modesty of a woman could likely be outraged is completely adequate to establish the commission of the offence without any prior conscious or deliberate intention because to understand the misuse of this law, it is essential to know what does not constitute the offence. The offences pertaining to outraging modesty of women must be made non- bailable, this would discourage the perpetrators and provide protection to the victims from repeated violations.

There is also a need to have a provision where checking the authenticity of the charges made by the complainant is mandated. This would not only aid in preventing fraudulent cases but also release the burden of such cases from the authorities so that their deserved focus can be shifted to valid complainants. According to the guidelines issued by the Supreme Court in the case of Sundar Babu & Ors. Vs. State of Tamil Nadu, the grounds for quashing an FIR u/s 482 of the CrPC include cases where the Where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wreaking vengeance on the accused and with a view to spite him due to private and personal grudge.

CONCLUSION

The laws relating to the offence of outraging the modesty of a woman have been evolving, which is a positive indication as laws oughtn’t be stagnant, Laws in a democracy like India should be changing or evolving with the needs of its growing population. According to National Crime Record Bureau statistics, in 2015 and 2016 respectively, 8685 and 7305 cases of insult to the modesty of women in relation to section 509 of the Indian Penal Code were reported. With the significant revision to the entire criminal law in 2013, it has been made plainly clear that there has also been an increase in the misuse of the provisions. To eradicate such evil from the society, it is quintessential to understand the provision in law which deals with the punishment of such offences committed against women.  Gender sensitization can go a long way in creating a psychological impact amongst all people as the ultimate change in society depends on people’s perspective.

To ensure the security and protection of women and to prevent the misuse of the provision, the law needs to be changed to better protect women, and stricter rules should be implemented. The most recent revision of the Criminal Law (Amendment) Act, 2018 have both made rape of a minor under 12 years of age punishable by the death sentence and for the first time in legal history, the minimum penalty is 20 years in prison. Additionally, after the most significant and revolutionary amendment was made in 2013, the laws and provisions for the offence of outraging modesty were completely changed, and additional offences like sexual harassment, the intention to disrobe women, voyeurism, stalking, and acid attacks were added[13]. It is important to remember that the changes were made in order to create significant change in preventing and reducing the commission of such horrible and serious offences.

Thus from the research it can be deduced that certain reforms are of utmost importance to do away with the evil prevailing in the Indian society. There surely is a silver lining but no one should be ignoring the pressing need for reforms and scope of betterment because Violence against women isn't cultural, it's criminal. Equality cannot come eventually, it's something we must fight for now.

[1][1]Ramkripal v. State of MP AIR 2007 SCC 265.

[2] ibid

[3] Ramkripal Singh v. State of Madhya Pradesh AIR 2007  SC 370

[4] Aman Kumar v. State of Haryana AIR 2004 SC 1497.

[5] Staff Reporter, “Crimes against women saw over 63% rise in 2021 so far”, THE HINDU, New Delhi, July 7, 2021.https://www.thehindu.com/news/cities/Delhi/crimes-against-women-saw-over-63-rise-in-2021-so-far/article35181148.ece( last visited May 2, 2023)

[6] India Penal Code, 1860, Section 354.

[7] Stephens v. Myers, AIR 1830 SC 349.

[8] A.C. Cama v. H.F. Morgan, (1864) 1 BHC 205.

[9] IANS, Kerala NEET Innerwear row: Girls allowed to re-appear for exam, https://assamtribune.com/national/kerala-neet-innerwear-row-girls-allowed-to-re-appear-for-exam-1435850(visited on May 18, 2023)

 

[10] Special Correspondent, “Kerala High Court stays order of Kozhikode Sessions Court granting bail to Civic Chandran in sexual assault case” https://www.thehindu.com/news/national/kerala/kerala-high-court-stays-order-of-kozhikode-sessions-court-granting-bail-to-civic-chandran-in-sexual-assault-case/article65804881.ece (last visited May 18, 2023)

[11] Ritika Sharma, “The Offence Relating to Outraging Modesty of Women- an Evaluation”, ILR, Vol 1: issue 1, Summer 2020, pp.8.

[12] ibid

[13] Jain Nirali, “Outraging the modesty of a woman”, 5 International Journal of Law 57, (2019) pp. 57.