Author: Nikhilesh Koundinya Symbiosis Law School, Pune
INTRODUCTION- THE PATRIARCHAL SYSTEM EXISTS
In India, since time immemorial there has been a system of patriarchy that has been followed. In fact, the Manu Smriti which was at a point of time being deliberated to be one of the most important books under religious literature had obscene patriarchal ideas and notions. The book spoke about how women are always supposed to listen to the male members irrespective of what they are saying, they are the father’s responsibility before marriage and after that the husband’s. All in all, the book treated a woman less as a human being and more as an object in society. Not only the Manu Smriti but also many other books under the Indian literature treated women as objects and always portrayed them to be sub-par as compared to the male gender. The unfortunate result of this was that at a certain level man started believing that he can control women and can take advantage of them however he pleases. This meant that the concept of sexual assault, rape, outraging the modesty of women was normalized at a certain point of history where women accepted that they were sub-par as compared to men. Slowly with the rise of feminism, women started recognizing that they had been placed below the male gender for far too long and they also needed to be recognized as an equal in society while having the same rights and privileges as men.
This led to major changes in legislation and judiciaries of all countries started passing judgments which opened up an avenue for women to seek relief for a wrong act that had been committed against them. This meant the acts of outraging a women’s modesty, committing the act of rape and many other acts were criminalized under various laws of different countries. In this article, we are mainly going to be focusing on the concept of outraging a woman’s modesty.
SECTION 354 OF THE INDIAN PENAL CODE
Section 349 to 374 of the Indian Penal Code relates to offences which are committed using criminal force or assault. Under this ambit Section 354 talks about outraging the modesty of the women with the use of criminal force or assault. The section under the code reads:
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 may extend to two years, or with fine, or with both.
After reading this definition we can clearly make out the three necessary elements which are required to convict a person under this offence which are:
The assault or use of criminal force must be on the women;
Use of criminal force or assault;
This use of force should be with an intention to outrage the modesty of a woman
HOW CAN YOU DEFINE MODESTY OF A WOMAN?
The courts have always struggled to give a definition for the word “modesty”. After the enactment of this section, the courts for a very long time defined modesty as per the findings of the case. But finally, in the case of State of Punjab v Major Singh the courts held that a woman’s modesty is her sex. The court also held that in cases pertaining to Section 354 the culpable intention of the accused will be looked into. The reaction of the women though very important and pertinent to the case cannot be an aspect on which the court can make a judgment. For example, if the woman is sleeping or has been given a drug dose due to which she is unconscious and a man commits the act under Section 354, he will still be liable as the ingredients are being fulfilled. In the case of Ram Kripal v State of Madhya Pradesh the facts of the case were that a man pulled a woman’s saree and asked for sexual intercourse. This classified as an offence under Section 354 as this was outraging a woman’s modesty by asking for sexual intercourse. In R v Court the court held that an act will be considered to be an indecent assault if the right-minded members of society feel that such an act outrages the modesty of a woman.
CULPABLE INTENTION OF THE ACCUSED
The courts have time and again held that the intention of the accused must be to commit the act of outraging the women’s modesty. The courts have many a time reiterated that merely touching a women’s body will not amount to outraging her modesty it needs to be added with the intention. In fact, in one of the cases, the court held that merely touching a women’s belly will not amount to outraging her modesty unless it is proven beyond a reasonable doubt that the accused had the intention to commit the act. In the case of Divender Singh v Hari Ram the court noted that the man had pushed the woman and hence, was liable under the use of criminal force. But in this scenario, the man did not outrage the modesty of the woman and hence, the court dropped the respective charges. Thus, this section explains that with the act even the mental elements must be fulfilled as it is important in all crimes under the Code.
The courts in many cases have held that if an offence by an individual cannot be classified as rape it can well be placed under Section 354 of the Code as an act of rape not proven is still outraging the modesty of a woman as it directly connects to sex. In the case of State v Musa the prosecution due to lack of evidence could not prove the offence of rape but the court held the accused responsible for outraging the modesty of the woman as the accused had dragged the women in her home to the bedroom. Thus, the job of the prosecution is to prove beyond a reasonable doubt that the act and the mindset were present when the accused committed the act. The job of the defence in such cases is to prove that the act that was committed was consensual. This essentially means that the consent of the women was taken before committing the act.
AMENDMENT OF SECTION 354 OF THE INDIAN PENAL CODE
Originally under Section 354, the punishment for outraging a woman’s modesty was 2 years with a fine which is for the magistrate to decide. But under the recent Criminal Law (Amendment) Act, 2013 the punishment has been made as:
Not less than one year and can be for a maximum period of 5 years inclusive of a fine which can be imposed by the judge’s discretion. The move was taken to act as deterrence so that people would be prevented from committing the act due to fear of the punishment. This will act as a shield for women in the society who face offences like this on a daily basis.
PROBLEM WITH THE PROVISION
The first and foremost problem with the provision is that it only applies to females and excludes males. This violates Article 14 of the Constitution and does not take into consideration the fact that even a man’s modesty can be outraged. Considering the act was drafted in 1860 women were needed to be uplifted and enough provisions were needed to be drafted to protect women from any form of violence. But in the 21st century, even men face harassment or modesty issues in offices, home etc. so this provision should be made gender-neutral along with all other sexual offence laws which apply only to women.
The second part is extremely important for the male gender. When a woman institutes the case of any sexual act which includes rape, outraging modesty etc. she does it because the man has committed an act which requires him to be punished. But the courts in recent years have seen an increase in the number of fake rapes, dowry deaths or other cases. What we need to understand is that when a woman puts forward a fake case a court may dismiss it after the first hearing claiming it to be a nuisance suit. But the man for the rest of his life will carry around a tag of being a potential threat to women or will be recognized as somebody who the other gender should stay away from. Thus, the final suggestion would be that if courts find women instituting fake cases there should be a provision for granting them a jail sentence for a certain number of years. This will help in three ways:
Men will be exonerated of crime faster as they would be able to proudly say that the case instituted was false and the woman who instituted the suit got what she deserved. It essentially portrays that the man did nothing wrong and the woman out of revenge/ vengeance instituted the suit.
For every real case of sexual assault, there are 4 cases which are false. Hence, sometimes though the case is true the judiciary has a problem in convicting a person as it may turn out to be false. Also, sometimes as citizens we feel that what the lady did is wrong and the case is false and hence even the real ones are not supported. This will help in bringing out those cases which are actually true and will advance the cause of justice.
The women will also understand the fact that not all advances or physical assault classify as outraging modesty or sexual assault or rape and also, they will understand that before instituting a suit they should clearly read what the act classifies as. By judging real cases the courts will be able to clarify the ingredients so that women do not loosely throw terms around on social media or other platforms by being uninformed about the nature of their words.
We have clearly seen the nature of Section 354 of the Indian Penal Code. It is a section which has been made to protect women in our country by safeguarding their modesty and punishing the accused who attacks a woman’s modesty. The amendment brought in regarding deterrence has further advanced the cause of justice and is improving in providing better justice to women in our country. The suggestions given are purely from the point of view of protecting and respecting the dignity of men also. Thus, we can see that as a country we are moving towards a time where a woman need not be afraid to walk in the night or need not be afraid to confront the accused in a court of law.
 Section 354 of the Indian Penal Code
 Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677
 AIR 1967 SC 63
 AIR 2007 SCW 2198
 (1998) 2 ALL ER 221 HL
 1990 Cr LJ 1845 HP
 1991 Cr LJ 2168 Orissa