A man and a woman have never coexisted peacefully. Despite being intellectually at par with men yet a woman’s position has been that of a vulnerable group in society. The patriarchal society in its need to maintain dominance and power has promoted submissive and non-rebellious women. The ones who dared to object to this view were punished. India is also a patriarchal society and the position of women is bad. Ancient India had social evil such as the sati system, Pardha system, Child marriage, dasi paratha, Temple dancers or Devadasis etc. Then came the era of Pre Independence which started during the 18th century at a time when the war against colonialism of British was going on. Indian Traditional society currently didn’t bother about modernization. But a change in the mindset has started, many freedom fighters and leaders started their fight for women’s rights. This made way to a change in the social standing of women. The same was reflected in the post-independent era when the Constitution was enforced. Our Constitution has given women many rights and the power to seek justice if it was discriminated against. And for this proposed in the Indian Penal Code (IPC) under Section 354 recognised offences committed specifically against women. Section 354 IPC is not a single section along with changing times and advancement in the crimes it has been amended to include sub-sections.
Section 354 “Outraging the modesty of women”
IPC’s 16 chapter deals with offences affecting the human body. But sections from Section 349 to Section 374 are relating to offences committed using criminal force and assault. Section 354 of Indian Penal Code provides that it is a crime to use force against a woman, or even threaten to use force, to ‘outrage her modesty.
Important Definitions in Section 354
The word “modesty” comes from the Latin word ‘modestus’ which means “keeping within measure” In law, it means the sexual dignity of a woman which is acquired by birth. This term is subjective i.e. the sexual limits differ in every woman; there cannot be a decided formula to indicate the boundaries of the sexual honour of a woman. It is a virtue attached to a woman owing to her sex.
This subjectiveness and the IPCs inability to define the term was causing lots of confusion. Hence finally in 2 cases, the SC of India defined “modesty”. In State of Punjab v. Major Singh, S.C. held that “the essence of a woman’s modesty is sex” and anyone who has committed an act against a woman which is suggestive of sex, then such acts shall be punished under section 354 of IPC. And in the case of Ramkripal v. State of M.P., the S. C. again defined modesty as “The essence of a woman’s modesty is her sex”.
The word ‘outrage’ implies a physical act. Herein, the modesty of a woman is violated by touching her without her consent at parts of her body that are unacceptable to her. It is necessary that the accused has used criminal force or made such gestures to outrage modesty or should have the knowledge that it would outrage her modesty. The reaction of the woman is very relevant but certain acts are bound to be outrageous to the modesty of every woman such as touching on her posterior sexual organs etc.
In the case of Divender Singh v. Hari Ram, the Court held that if a girl is pushed and beaten by a man, it establishes the fact of assault and not the intention to outrage modesty. Therefore, the proof of culpable intention to outrage the modesty of the woman is very vital in cases under section 354.
Ingredients of Section 354 IPC
There are some key elements that the prosecution has to establish beyond doubt for this Section to be applied in a case. They are:
The aggrieved party must be women
The section in its word expressly provides that “Whoever outrages the modesty of Women” here the term ‘women’ refers to a female irrespective of her age.
This section was challenged on the ground that it’s violative of the Fundamental Rights under A 14 and A 15 in the case of Girdhar vs State. But the court while referring to the judgment of Ranining Rawat vs State of Saurashtra, where the SC held that the scope of A 14 permits ‘Reasonable Classification’ had held that the section may treat men differently from women.
Further, the Bench in Girdhar Gopal’s case also observed, that the section operates equally upon all persons with no exemption provided to women from punishment. As the pronoun “he” in the section means any person whether male or female.
Assault or use of Criminal force
The burden of proof is cast on the prosecution to prove that the Act of assault falls within the ambit of assault or use of criminal force.
In the case of State v. Musa, the victim a married woman, alleged two men had dragged her into her own house and had raped her one after the other. There were traces of semen on her clothes but there were no such traces on the clothes of accused persons. Therefore, the court with the opinion that there was no case of rape made out, but the accused were held guilty of an offence under section 354 as they had indecently dragged the victim intending to outrage her modesty.
This is an old case before amendment in the S 375 (Rape). Post amendment the section empowers the court that with proof “penetration” to be convicted as the offence of rape.
The accused did so with an intention or the knowledge that he is likely to outrage the modesty of the aggrieved
In the landmark case of State of Punjab v. Major Singh, the question was raised whether the act of the accused causing injury to the private parts of a minor female constituted the offence of outraging her modesty. The Supreme Court laid the test of determining the outrage in respect of the prudence of a reasonable man. If such a man thinks that the act committed is sufficient enough to tarnish the modesty of a woman then such an act would attract the provisions of the impugned Section.
Punishment under section 354 IPC
Imprisonment for 1 year that may extend to 5 years and fine. It is a cognizable and non-bailable offence.
Need for Women Empowerment in India
Section 354 A “Sexual Harassment”
Since women are a vulnerable group they are subjected to exploitation in all sectors. Be it emotional, financial, social and even Sexual. Since the courts are aware of this and with the view to provide a remedy to women, S 354 A was included in the IPC. S 354 A recognizes 4 acts as sexual harassment they are:
- Any unwelcome physical contact or advances and explicit sexual overtures
This physical advances also includes unwelcome sexual gesture or behaviour whether directly or indirectly seen as sexually coloured remarks. With the changing world language of communication also has been changing. The world of technology has been a great contribution to this. Hence sexual gestures will also include those that are newly used by the current generation eg Use of slang language that has a sexual meaning, use of emojis etc.
- Demand or request of sexual favours
The scope of this also includes any unwelcome physical, verbal/non-verbal conduct that is sexual in nature.
- Showing pornography against the will of women
- Making sexually coloured remarks
The critical factor is the “unwelcomed behaviour”, thereby making the impact of such actions on the recipient more relevant rather than the intent of the perpetrator. As per the Indian Constitution, sexual harassment is a gross violation of the fundamental right of a woman to gender equality provided under Article 14 of the Constitution of India and her right to life and live with dignity under Article 21 of the Constitution. Thus in 1997 in the case of Vishaka V. The state of Rajasthan and others, for the first time, sexual harassment had been explicitly and legally defined. It was in this landmark case that sexual harassment was identified as separate illegal behaviour. The guidelines provided under this case by the SC were used by the government until the Act of The Sexual Harassment of Women At Workplace (Prevention, Prohibition and Redressal) Act, was enacted in the year 2013.
Punishment under Section 354 A
- For the offence of unwelcome physical contact and advances or a demand or request for sexual favours or showing pornography. The punishment is imprisonment up to 3 years or fine or both. It is a cognizable and bailable offence.
- For the offence of making a sexually coloured remark. The punishment is imprisonment up to 1 year or fine or both. It is a cognizable and bailable offence.
Section 354 B “Assault or use of criminal force with intent to disrobe”
Disrobing is a very serious offence that shatters the self-esteem and dignity of a woman and significantly affects the lives of other women. A man is guilty of the offence of disrobing if he compels a woman by assaulting or using criminal force to remove her clothes and be naked in any place. The accused must have the requisite intention to disrobe or compel a woman to get naked but if the clothes of the woman get torn in a scuffle unintentionally the accused shall not be guilty of the offence of disrobing.
The ingredients to be satisfied to attract this section are:
1)The accused must be a man
This is again subjected to the judgement of Girdhar v. State.
2)Use of criminal force or assault or abetment of any such action must be there
Punishment under Section 354 B
Imprisonment for 3 to 7 years with fine. It is a cognizable and non-bailable offence.
Section 354 C “Voyeurism”
A ‘voyeur’ is a term used to define a person who derives sexual gratification from the observation of others as they undress or engage in sexual activities. Voyeurism is not only a violation of a person’s privacy but a gross violation of women rights to live with dignity and reputation. Even if a woman has agreed to engage in a sexual act voluntarily, then video graphing the same and making it available to the third person without her consent shall be punishable as once recorded video finds a place in the pornographic market.
In the case of R vs Jarvis, Ryan Jarvis (Jarvis) was a high school. He was recording female students through a pen that had a camera fitted inside and the videos were made without the consent of the students. He was recording female students through a pen that had a camera fitted inside and the videos were made without the consent of the students. Jarvis was charged for voyeurism.
Punishment Under Section 354 C
1.Imprisonment for 1 to 3 years with a fine for a first conviction. It is cognizable and bailable.
2.Imprisonment for 3 to 7 years with a fine for a second or subsequent conviction It is cognizable and non-bailable.
Section 354 D “Stalking”
According to Section 354D IPC, Stalking is the act of
- Continuously following a woman or contacting her,
- Either online or in-person
- When she has clearly shown she doesn’t want the attention.
Remedies available to women
Women who are being stalked can file a complaint with National Commission for Women (NCW) and the Commission will take the matter up with the police. Any woman, in any part of India, can file this complaint.
But this section is subjected to exception.
Example: Ram is a police officer tracking down a drug shipment and has been monitoring emails received by Sita. This would be covered by the exception.
Punishment under Section 354 D
1.Imprisonment up to 3 years with a fine for a first conviction. It is a cognizable and bailable offence.
2.Imprisonment up to 5 years with a fine for a second or subsequent conviction It is a cognizable and non-bailable offence.
Notwithstanding the number of laws to protect and safeguard the rights and interest of women, the rate of crime against women and victimization has been increasing and diversifying every day. This implies that not only laws regulate and control the crimes against women but the same has to be backed by the individual of our society. Removing the evil eyes on women and inculcation of social ethics, morals and values, respect and honour in every human being especially towards women is the need of the hour and is a supplementing factor that can equally contribute to reducing the number of crimes against women.