Section 354 of the Indian Penal Code, 1860 lays out a section titled “Assault or criminal force to woman with the intent to outrage her modesty”, which is a section defining what constitutes outraging the modesty of a woman, and the punishment for it. According to the section, three criteria need to be fulfilled, to constitute an offence under this section. The criteria are – a) the assault must be on a woman; b) the accused must have used criminal force on her; and c) the criminal force must have been used on the woman, thereby intending to outrage her modesty. This section, like many others in the Indian Penal Code, had been put into place to protect the sanctity and the modesty of the Indian woman. However, I, like many others, can find more than one problem to it.
First and foremost, the IPC does not provide any definition for what the term ‘modesty’ is supposed to mean. According to the 1993 Edition of the Oxford English Dictionary, modesty is defined as the “womanly propriety of behaviour: scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestion.” This definition is quite subjective, and feeds into the stereotype of what the ideal, “cultured”, “respectable” woman ought to be like. Since it is subjective, often times it is left upon the Courts to decide the definition of “modesty” in a particular case. According to a judge, a woman may be modest if she fits their definition, and thus any such act committed against her, which falls under the definition of the offence under section 354 of the IPC, will be punished. But what if she doesn’t fit the particular judge’s understanding of what is modest and what is not? What if, according to the judge, she is “uncultured”, and “bashful”? Is “outraging her modesty” then justified? The anxiety that the country seems to have around the sexuality, and sexual independence of women is quite humourous, if not disturbing. It is, therefore, not surprising to see intimidation and outrage against an “immodest” woman’s sexual awakening, who is apparently only supposed to be looked at as someone’s sister or mother, rather than an individual, to be respectful towards them.
In the Supreme Court Judgement of State of Punjab v. Major Singh, Bachawat J. provided a definition for modesty. He said, “the essence of a woman’s modesty is her sex.” I wonder why just so much importance has been given to a woman’s sex? A woman’s sex seems to be the entire country’s concern! This definition of modesty and this section of the IPC not only reinforces and strengthens the ancient patriarchal structures of the society but also lays out that women are the only ones whose “modesty” can be outraged. What then, about the men, or the people of other genders, or people who would rather not subscribe to any gender at all? What about them? Is their “modesty” or body not important? It is assumed that their “modesty” cannot be outraged. This is problematic not only because it completely ignores the fact that men, and individuals of other genders, or genderless individuals can face sexual abuse and harassment as well, but also because it reaffirms the idea that it is the body of a woman that must be protected at all costs, as anything otherwise would put a dent their family’s honour and reputation. The woman’s sex must be preserved, not only to protect her, but also to protect her family’s honour, and her “womanhood” which is, alas, the most important attribute of a woman! This section, and this rather moralistic definition of modesty, and womanhood tends to limit, and regulate the behaviour of women than uphold and protect their rights.
Furthermore, Section 10 of the IPC defines a woman as a female human being of any age. Ideally, should this not include infants, and children of the female gender, who have unfortunately been victims of such acts as well? However, we have seen quite a few times that children and infants are excluded from the definition of the crime under this section. So this, like many other things, fall into the grey area between Section 354, which is outraging the modesty of a woman, and Section 375, which is the section against rape. This grey area is where wait the little girl, or the man, or other individuals who have been molested or raped, along with the woman who faced something that doesn’t constitute rape, but it was also bigger than the definition of molestation; waiting for justice to be served to them.
So the questions arise – is this section enough to protect an individual’s rights, regardless of what gender they do or don’t belong to? Does this section fulfil the purpose of its existence, or is it counter-productive? Was that the intention of framing this section in the first place? Is it the modesty of the woman that is outraged, or is it the patriarch who is outraged, when they see a woman embracing her sexual self?
Invoking this concept of “modesty” as a deciding factor for preserving a woman’s body, and sex puts the entire feminist movement a thousand years behind where it currently is. It shifts the focus on the woman’s character, rather than on the crime that was committed, and that is a very wrong approach to take for a law that is put in place to tackle a crime. It is unfair, and would not be able to fulfil its purpose. Trying to define whether a woman’s modesty was outraged based on her character, is not a solution, rather the problem itself. It not only demoralises women from approaching the system for justice but also demonises the women that do not fit into this narrative of a modest woman. There is a dire need for this section to be rephrased, to be made more inclusive, and more fitting for the modern world.
Author(s) Name: Jayanti Srivastava (Student, OP Jindal Global University, Sonipat)