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Outraging The Modesty Of Women And Sexual Harassment

Under Indian Penal Code, Chapter XVI deals with offences affecting the human body out of which Section 349 to Section 358 deals with offences of criminal force and assault. Under this ambit, offences of sexual harassment are covered.

Section 354 of Indian Penal Code, 1860 ( hereinafter referred to as IPC)
354. Assault or criminal force to woman with intent to outrage her modesty:
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.

For a clear understanding of this Section, we need to interpret some terms used in it:
Assault and criminal force
"Assaults or uses criminal force" shows that there are two different things: assault and criminal force. In common parlance, they are considered synonymous but legally they are different concepts. Assault denotes the preparatory acts which cause apprehension of use of criminal force. Assault falls short of actual use of criminal force.

Woman
"To any woman" implies that only women can be the victim of the offence. Woman is defined under Section 10 of IPC as a woman of any age. Therefore, the term woman covers from an infant to a lady on her deathbed.

Intention and knowledge
Intention and knowledge both occur only in the place of the mind of the criminal. Therefore, it has to be deduced from the acts itself. For example, a man was trying to pull a woman' saree and asking for sexual favours. Here, his act of asking for sexual favours combined with pulling the saree clearly shows his guilty intention.

Another example, could be taken where the accused was forcibly touching the posterior of the victim even after her clear show of discomfort and when a passerby closed in the distance, he suddenly stopped and ran away. His act of running clearly establishes knowledge on the part of the accused.

What is modesty
Modesty is nowhere defined in the Indian Penal Code. Dictionary.com explains the meaning of modest as free from ostentation or showy extravagance; also having or showing regard for the decencies of behaviour, speech, dress,etc. Therefore, we could infer that modesty in one way could be explained as the decency of that woman. This decency is attached to her being a woman.

The case of State of Punjab v. Major Singh, is a good illustration to understand the concept of modesty.

In this case, Major Singh walked into the room where the victim was sleeping. Victim being an infant girl of seven and a half months. He stripped himself naked and caused injuries to the vagina of the victim by fingering.In the lower courts it was argued in the defense that Section 354 demands that the offender must have outraged the modesty but in the present case no reasonable man will say that an infant girl of seven and a half months will have modesty which could be outraged. This contention although accepted by lower courts was rejected by the Supreme Court and the accused was held guilty.

Court observed:
"The essence of a woman's modesty is her sex. The modesty of an adult female is writ large on her body. Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty capable of being outraged.. A female of tender age--- has not yet developed a sense of shame and has no awareness of sex,--- from her very birth she possesses the modesty which is the attribute of her sex."

When modesty is said to be outraged
The test to ascertain whether the criminal force or assault used by the accused against the victim could be said to outrage the modesty of that victim is if it is capable of shocking the sense of decency of the woman. In Raju Pandurang Mahale v State of Maharashtra, where the accused on a false pretext brought the victim to the house of the co-accused and forced her to drink liquor. After which he took her nude photographs of the victim. This act is capable of shocking the decency of a woman therefore, he will be held guilty under Section 354.

Is women's reaction relevant?
The reaction of women is very relevant in judging whether an assault amounted to outrage of her modesty, but its absence is not always decisive. It is not always necessary that the woman will ascertain the outrage to her modesty or acknowledge it. Even if she doesn't realise what has happened, it will still be considered a crime under the Section.

For eg. If an infant or a mentally challenged girl is the victim,she will not be able to react or understand the matter but the perpetrator will be punished.

Defence of trivial offence against outraging modesty
In the case of Rupan Deol Bajaj v Kanwar Pal Singh Gill, the victim registered a complaint and a First Information Report (FIR) against the accused. In order to quash the FIR, the accused moved to the High Court of Punjab and Haryana. The High Court quashed the FIR stating that the harm caused is of trifling nature and does not disclose any cognizable offence. The matter went to the Supreme Court, in which The Supreme Court held the quashing of FIR as illegal. It further held that when a matter is related to the modesty of a woman, under no circumstance it can be termed as trifling.

Judicial view on false cases
In the case of State of Maharashtra v Satyendra Dayal Khare, the Bombay High Court held the accused liable and his defence for false implication was rejected. It was observed that "no decent self-respecting woman would allow herself to be used as a tool in the hands of her superiors to falsely implicate other superior officer in such a serious charge as molestation with a view to improve her prospects, in the organization, especially since the allegations would be damaging her personal reputation and character".

But, it is submitted that such a rule that a woman will not put her respect at stake can not be applied in every circumstance. According to the Supreme Court, each case must be determined with its own facts and circumstances as false case of Rape and sexual assault is also common to the courts of law.

Type of offence under CrPC
Offence under Section 354 is a cognizable offence which is triable by the Magistrate. This offence is Non-bailable.

Punishment prescribed by the Section
Amendment Act of 2013, brought some major change in punishment under Section 354 as "imprisonment of either description for a term which may extend to two years or with fine, or with both" was replaced with "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".

With these changes, a minimum punishment was set for one year which was not present before, also maximum punishment increased to five years from two years and fine was also made compulsory.

In order to curb the continuous increase in the cases of sexual harassment and owing to very less amount of punishment there was no fear for law in the eyes of the perpetrator. Therefore, Punishment was severed to deter the like minded people from doing the offence.

Need for Criminal Law (Amendment) Act, 2013
In 2012, a heinous gang rape took place on the night of 16th December. Victim along with his male friend took a private bus. There were already 6 other men on the bus including the driver. Victim along with his friend had a quarrel with those men during which Victim and his friend were brutally beaten up. Later, the main victim was gang raped by those 6 men. Reports indicated that an iron rod was inserted in the vagina of the victim that caused extensive damage to the internal organs.

Later, both of them were thrown out of the bus to die. Female victim died 6 days later on 22nd December. Police officials caught all the accused persons. There was a huge outcry of people in support of the victim. Government felt the need to amend the current laws related to offences against women. The Justice Verma committee was formed to severe the punishment of offences against women and to make society a better place for women.

This committee was constituted under Hon'ble Justice (Rtd) J.S. Verma, former Chief Justice of India as Chairman; Hon'ble Justice (Rtd) Leila Seth, former Chief Justice of HP and Shri Gopal Subramaniam, Former Solicitor General of India as members. Among many other significant changes, it recommended to harshen the punishment of Section 354 and to add sexual harassment and related offences in IPC, which founded there way by Section 354A, Section 354B, Section 354C and Section 354D.

Sexual Harassment
Offence of Sexual harassment and its punishment has been defined under Section 354A. Section 354A provides a number of acts out of which if any of the act is committed the offence of sexual harassment will be completed.
  • physical contact and advances involving unwelcome and explicit sexual overtures; or
  • a demand or request for sexual favours; or
  • showing pornography against the will of a woman; or
  • making sexually coloured remarks

Punishment prescribed of the first three instances will be rigorous imprisonment for a term which may extend up to three years, or with fine, or with both.
Whereas punishment for passing sexually coloured remarks is imprisonment of either description which may extend to one year, or with fine, or both.
Offence under Section 354A is a cognizable offence, triable by the Magistrate. This offence is Bailable.

Difference between sexual harrassment in IPC and sexual harassment at workplace
Sexual harassment when done at workplace holds a different legal position than sexual harassment at other places. Sexual harassment at workplace is governed by Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Under Fundamental Rights, sexual harassment is covered under Article 21 which provides for right to life and personal liberty, whereas, sexual harassment at workplace are covered under Article 14 which provides for gender equality, also, Article 19(1)(g) which provides freedom to practice any profession, or to carry on any occupation, trade or business and under Article 21 which provides right to life and personal liberty.

Vishaka and Ors. v. State of Rajasthan
This as a landmark case dealing with sexual harassment. In this case, definition of sexual harassment was given by the Supreme Court. The Supreme Court further gave guidelines to be followed by employers and colleagues at the workplace. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was passed in influence of this judgment only.
  • What men may normally consider to be cool but law may see as harassment
  • Passing rude comments or jokes which are of sexual nature
  • Forcible hug or deliberately brushing up against a person
  • Touching posterior of a woman
  • Trying to make contact with the woman even after her multiple rejections
  • Peeping into changing rooms
  • Sending pornographic content
  • Asking for sexual favours, etc.

Disrobing a woman
Disrobing a woman is covered under Section 354B of IPC. It states that any man who assaults or uses criminal force or abets to disrobe a woman or compel her to be naked such an act, intending to disrobe a woman will be committing an offence under this Section.

An immediate implication of the provision is that the use of force or assault against woman with intent to disrobe her or make her naked against her wish, unlike in the past, will no more amount to mere outraging the modesty of a woman and the perpetrator will not get lighter punishment of Section 354.

Punishment prescribed for this offence is minimum 3 years extending up to seven years along with a fine.This offence is a cognizable offence, triable by the Magistrate. It is a Non-bailable offence.

Voyeurism
Voyeurism is covered under Section 354C of IPC. It provides that any man should be convicted under this Section if he watches or records a woman who is doing some private act and does not expect to be observed by anyone.

The "private act" is explained by Explanation 1 as an act in which according to the circumstances the victim would reasonably expect privacy and where the victim's body such as genitals, posterior or breasts are exposed and the victim is naked or only in her underwear; or the victim using a lavatory, or bathing; or a sexual act which is not being carried in public.

This Section by virtue of explanation 2 also covers dissemination of the photos of which the victim consented to be recorded but not consented for the dissemination.

Punishment for voyeurism
Section provides different punishment for first conviction and second conviction. Punishment for repeat offenders is more severe because they have already been prosecuted once and didn't change themselves as they were supposed to do after imprisonment, therefore, a strict punishment is required to deter them from doing it again and again.

Imprisonment of either description ( simple or rigorous) not less than one year but could extend upto three years along with fine for first conviction whereas for second conviction, imprisonment of either description which will vary from three to seven years combined with fine.

Offence of voyeurism
Offence of voyeurism is cognizable, triable by any magistrate. For first conviction, it is Bailable but for subsequent conviction it turns into Non-bailable offence.

Stalking
Stalking is explained under Section 354D. Stalking is a crime of following a woman or contacting or trying to contact that woman for personal interaction even after clear indication of discomfort from that woman.This crime also includes if a man is monitoring the use of the internet of the woman, her email and any form of electrical communication.

However the Section further provides some circumstances where a man could be exempted from the crime, for instance:
  • If the accused had been entrusted with the responsibility of detection and prevention of crime by the State
  • If he was pursuing under any law or to comply with any requirement or condition imposed by any person under any law
     
Punishment for Stalking
Punishment prescribed for first conviction is imprisonment of either description up to three years along with fine and punishment for subsequent conviction is imprisonment up to five years along with fine.

Offence of Stalking
Offence of stalking is cognizable, triable by any magistrate. For first conviction, it is Bailable but for subsequent conviction it becomes a Non-bailable offence.

Do laws related to sexual harassment need to be gender neutral
Earlier women used to be confined in their household chores but with change in time, now they are holding positions in every sector. This advancement needs to be encouraged and protected by various laws. With all these advancements, men and women are on equal footing therefore laws should also be applied equally.

The present laws of sexual offences protect the woman, which is acceptable as they need to be protected against the dominance of others. But howso, males are not protected by the same laws. Males are also subjected to sexual harassment by both males and females. The present laws are flawed on the ground that they do not provide the same ground to the men.

Moreover, present laws do not provide for the prosecution of women. It seems that lawmakers never thought of a woman harassing a man or even a woman for that matter.

Difference Between Sexual Harrasment And Rape
Rape is a heinous crime defined and explained in Section 375. There are different classes of rape like gang rape, rape with a minor, etc. one thing which is common in rape and outraging modesty of woman is that criminal force is used to outrage the modesty of woman. In other words, Rape is a bigger crime under which the modesty is outraged of the victim but there must be clear intention of the accused to penetrate the victim. This intention to penetrate is absent in outraging the modesty of women and marks a clear distinction.

Some instances which could be covered under laws related to sexual offences:
Frotteurism
Frotteurism is a condition in which a person is sexually aroused by touching or rubbing one's genitals against another person without their consent. Although this condition is not much talked about, it is shockingly common at public places. This could be happening in a crowded bus or in a line to get your railway tickets or at food stalls in marriage halls, even at religious places. This act is covered under Section 290 of IPC, but this will also fulfill the essentials of outraging the modesty of women.

Exhibitionism
Exhibitionism is a term which is used when a person displays one's genitals for sexual gratification. It is a very inappropriate behaviour if done outside the context of intimate sexual relations. This may feel good from the perspective of the person doing it but the victim will feel disgusted and violated. This act is covered under Section 294 of IPC.

Conclusion
Every woman possesses modesty capable of being outraged whether young or old, a newborn or a bed ridden old woman, even if the woman is not capable of reacting or even knowing of her modesty. This modesty is an attribute to her being a female and they have a right to protect it.

Sexual offences were introduced to protect the women by imposing harsh punishment to the offender but number of these cases in India is alarming. It is also of great concern that laws which are made for the protection of women are sometimes exploited by women for taking money from the accused or to satisfy their ego. Also, there is no punishment if a woman harasses another woman.

Laws need to be gender neutral so that the misuse can be stopped and true equality can be achieved. Also, a law may be very well written but it will mean nothing when implemented poorly. Government needs to make some changes, so that more women come forward to report these offenses which will help in better implementation of these laws.

References:

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