This article has been written by Amrutha Selvam, pursuing a Diploma in Legal English Communication – Oratory, Writing, Listening And Accuracy from LawSikho. It has been edited by Oishika Banerji (Team Lawsikho).
it has been published by Rachit Garg.
Indian society places great emphasis on the modesty of women and any act that is seen as an insult to modesty is considered to be a grave offence. The offence of outraging the modesty of a woman is not limited to physical acts of violence but also includes any verbal or non-verbal conduct that is intended to insult the same. The offence is considered to be cognizable, non-bailable, and non-compoundable by nature. In recent years, the issue of the safety and security of women has come to the forefront in India, with several high-profile cases of sexual offences against women being reported. The Indian government has taken steps to strengthen laws against sexual offences, including the introduction of stricter deterrents for rape and sexual assault. However, sexual offences against women continue to be a major problem in India and efforts are still needed to ensure that laws are effectively implemented. It is important for individuals to be aware of their rights and for society to take a zero-tolerance approach toward sexual offences. This article aims to provide an overview of the offence of outraging the modesty of women in India and the efforts being made to strengthen laws against sexual offence
Outraging the modesty of a woman – provisions under the IPC
The offence of outraging the modesty of a woman in India is a serious offence defined under Section 354 of the Indian Penal Code, 1860. The section states that any person who assaults or uses criminal force on 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 shall not be less than one year but which may extend to five years, and shall also be liable to fine.
Essentials of Section 354 of the Indian Penal Code, 1860
What is modesty
The act of outraging a female’s modesty is increasing exponentially thereby taking a toll on the lives of women leading to mental and physical agony. Modesty has been defined as a quality or state of being modest, which is characterised by humility, restraint, simplicity, and good taste. In the context of outraging the modesty of a woman, it refers to the virtue that attaches to a female owing to her gender and is an attribute associated with females in general. It is a sense of shame or bashfulness that a woman feels when faced with any act that is intended to outrage her modesty. Put simply, the court of law while deciding on the case of State of Punjab v. Major Singh (1966), has observed that modesty to a woman has evolved as altogether a different concept which has very little to do with the physique of the woman. The court further states that the modesty of a woman is intimately connected with femininity including her sex.
Further, modesty is not only limited to physical modesty but it also includes moral and psychological modesty. The moral modesty of a woman is said to be the sense of shame or bashfulness that a woman feels when faced with any act that is intended to outrage her modesty. The psychological modesty of a woman is said to be her innate sense of self-respect and dignity.
What is the punishment for the offence of outraging of female’s modesty under the Indian Penal Code, 1860
As per the Indian Penal Code, 1860, the punishment for outraging a woman’s modesty is imprisonment of either description for a term that shall not be less than one year but which may extend to five years, and shall also be liable to a fine. This means that if a person is found guilty of outraging the modesty of a woman, he can be sentenced to a minimum of one year in prison and a maximum of five years in prison. The offender will also be liable for a fine.
It is important to note that the punishment for this offence is not limited to imprisonment and fine but also includes other forms of punishment such as community service, counselling, and rehabilitation programs. The court also has the discretion to impose additional punishment if it deems it necessary. In cases of repeat offenders or aggravating circumstances, the court can impose a stricter punishment. For example, in cases of gang rape or rape of a minor, the punishment is imprisonment for a term that shall not be less than 20 years, but which may extend to life imprisonment, and shall also be liable to a fine.
In addition, certain laws such as the Protection of Children from Sexual Offences Act, 2012 (POCSO), and the Criminal Law (Amendment) Act, 2013 also provide for harsher punishment for sexual offences against children. It is important to note that the punishment for the offence of outraging the modesty of a woman is not limited to the offender alone. The Indian judiciary has held that the punishment for the offence must be such to deter the offender from committing the crime again, and also to deter others from committing similar offences. The punishment must also be such to reform the offender and bring about a change in his attitude toward women, hence can be termed as reformative punishment.
Indian judiciary and its approach towards the concept of outraging female modesty
As has been mentioned previously, the notable case of Major Lachhman Singh v. The State (1952), has considered and discussed in length, the term ‘modesty’ pertaining to the woman. As far as the offence under Section 354 of the Indian Penal Code, 1860 was placed under consideration, it was explicitly held that only allegations would not be sufficient enough to fulfil the necessary and essential ingredient of the offence of outraging a female’s modesty. Further, it was the case of Ramkripal Singh v. State of Madhya Pradesh (2007), where the Supreme Court of India had considered the relationship between Section 354 and Section 509 of the Code of 1860. Section 509 makes the intention to insult the modesty of the woman an indispensable ingredient of the offence mentioned under Section 354.
The landmark case of Swapna Barman v. Subir Das (2003), had held that under the provision of Section 509, the term ‘modesty’ does not only limit itself towards leading to the contemplation of a sexual relationship of an indecent character but also stands inclusive of indecency. Therefore, it is necessary to consider that any act which can be termed to have fallen short of rape needs to be attributed as outraging the modesty of the woman. Furthermore, it is significant to state that a woman can also be tried for the offence of outraging the modesty of any other woman as the codified sections of the Indian Penal Code, 1860, are themselves gender neutral and do not specify an individual of any particular gender as an offender for the actions. Thus prosecution for this offence extends in cases of both males and females.
The Indian judiciary has been significant in contributing to the innumerable modifications which are being brought about with regard to the offence under Section 354 of the Indian Penal Code, 1860, with an aim to make the provision stricter and with an intention to curb the accelerating rate of criminal records of such offence thereby making the provision of safety, security and protection to the woman at large, available. As per the Justice Verma Committee Report, which was submitted on January 23, 2013, non-penetrative forms of sexual contact were required to be considered sexual assault and the punishment was to be increased to five years under Section 354 of the Indian Penal Code, 1860. A quicker and more speedy trial of such an offence was also recommended by the Committee. Headed by former Chief Justice of India J.S. Verma, the Committee identified the root cause of sexual offences was the failure of governance. This report has played a considerable role in introducing the major amendment of 2013 in the Indian Penal Code, 1860. Considering the recommendations that were given, the crucial amendment was brought in March 2013, by means of the Criminal Law (Amendment) Act, 2013. The punishments were increased by means of the same.
Outranging of female modesty vis-a-vis rape
It is ideal to note that the offence of outraging the modesty of women and rape has a significant distinction as to the facts and the provisions which are responsible for creating the charge for either of the offences. Although the line of difference between the two offences is negligible, both can in no way be considered similar. Before proceeding with the differences between the two, it is necessary to have a general idea about the offence of rape.
The offence of rape
Rape as a criminal offence has been defined under Section 375 of the Indian Penal Code, 1860 with Section 376 dealing with the punishment for the commission of the same. Rape can be described as the offence committed by a man on a woman, provided she is not the wife of that man, and the man is also not below twelve years. Sub-section (2) of Section 376, provides that any person who commits rape by means of fulfilling the conditions of the clauses provided in the sub-section would be held liable for committing rape and has to serve rigorous imprisonment for a term as has been prescribed in Section 376.
Difference between outraging modesty and rape
In the case of Jeet Singh v. State (1992), lack of evidence of the offence of rape categorized disrobing of the victim under the offence of outraging modesty of women thereby altering Section 376 with that of Section 354 of the Indian Penal Code, 1860. Further, the case of Tukaram Govind Yadav v. State of Maharashtra (2010) draws attention while talking to the difference between Section 354 and Section 375, as although the case was perceived to be falling under the latter provision, the Bombay High Court with its due reasoning reached to the conclusion that as penetration of penis was not involved in the female’s body, the offence of Section 354 could only be made out with the support of medical evidence presented.
The facts of the case of Jai Chand v. State (1996) draw attention for in this case, the accused exercising force on the prosecutrix had pushed the latter onto the bed with the intention to disrobe by undressing her. Although after the prosecutrix herself exercising self-defence pushed the accused away and the latter not going back to carry on the offence, the interesting question before the court of law was whether the accused be held guilty of rape or will also be confined to the ambit of Section 354 of the Code of 1860. It was held that since there was the absence of evidence of rape according to the narrated facts and circumstances before the court, the offence which was made out was that o outraging the modesty of women under Section 354 of the Indian Penal Code, 1860.
Another case to be noted in this regard is the case of Ram Mehar v. State of Haryana (2016), in which the accused had grabbed the prosecutrix thereby trying to undress her. The offence of rape was not made out since the penetration of the penis had not taken place as prior to that, the aggrieved party had given a blow through the sickle on the accused. Thus, the accused was held to be guilty under Section 354.
These judgments were overruled by the Supreme Court’s decision in the case of State of Uttar Pradesh v. Rajit Ram (2011), in which the conviction under Section 376 being altered by Section 354 of the Indian Penal Code, 1860, was scrapped and thus sent back to the trial court. The Apex Court in this case was dissatisfied with the decision-making of the Allahabad High Court for there wasn’t any rational reason provided by the same while converting an offence under Section 376 to that of Section 354. Thus while stating that the reasoning is not sustained in the legal eyes, the top court rejected the High Court’s judicial reasoning.
What can be concluded taking into account all the above judgments is that, while the offence of rape has its own set of requirements laid down under Section 375 read with Section 376 when it comes to outraging of female modesty under Section 354, the act of causing insult to the female or an intention to harm her dignity has to be made out. Put simply, Section 375 read with Section 376 is inclusive of the offence under Section 354 of the Indian Penal Code, 1860.
Efforts made by the Indian government to strengthen provisions for outraging female’s modesty
In recent years, the Indian government has taken a number of steps to strengthen laws against sexual offences in the country, in an effort to combat the issue surrounding the same. Some of the key efforts include:
1. The Criminal Law (Amendment) Act, 2013: This amendment to the Indian Penal Code, 1860 introduced stricter punishment for rape and sexual assault, including the death penalty in cases of repeat offenders or cases where the victim is left in a vegetative state. The amendment also expanded the definition of rape to include acts such as vaginal, oral, and anal penetration, and the insertion of objects and body parts into the vagina, mouth, and anus.
2. The Protection of Children from Sexual Offences (POCSO) Act, 2012: This Act provides for stricter punishment for sexual offences against children, extending to life imprisonment in certain cases. The Act also provides for measures to protect the rights of child victims, including the use of closed-circuit television cameras in courtrooms and the use of video conferencing to record the testimony of child victims. The act also makes it mandatory for all cases of sexual offences against children to be tried in special courts within a period of one year from the date of the commission of the offence.
3. The Nirbhaya Fund: This fund, established in 2013, is aimed at enhancing the safety and security of women in the country. The fund is used to support initiatives and schemes to improve the safety and security of women, including the setting up of fast-track courts to try cases of sexual offences and the strengthening of police machinery to deal with such offences.
4. The Criminal Law (Amendment) Act, 2020: This Act introduced several changes to the Indian Penal Code,1860, including the introduction of stringent deterrents for sexual offenses, such as rape, acid attack, and stalking. The Act also introduced a new provision for the punishment for sexual harassment, including the punishment for sexual harassment at the workplace. The Act also makes it a punishable offence to disclose the identity of the victim of sexual offences or their family members.
5. The Suraksha Setu App: The Suraksha Setu App is a mobile application launched by the Indian government in 2020 to provide support and assistance to women in distress. The app provides a range of services such as emergency assistance, emergency contacts, and emergency alerts to women in distress.
The offence of outraging the modesty of a woman is a severe offence in India and is punishable by means of both imprisonment and a fine. Efforts have been made to strengthen laws against sexual offences in recent years, however, sexual offences against women continue to be a major problem in India and efforts are still needed to ensure that laws are effectively implemented and perpetrators are brought to justice. It is important for individuals to be aware of their rights and for society to take a zero-tolerance approach toward sexual offences.
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