The article is written by Ansruta Debnath, a law student of National Law University Odisha. This article is an attempt to define the legal nitty-gritty of Section 509 of the Indian Penal Code,1860.
This article has been published by Rachit Garg.
Table of Contents
Introduction
Eve-teasing is a common phenomenon in India. This article talks about Section 509 of the Indian Penal Code, 1860, which criminalises eve-teasing, the provisions involved, the only amendments relating to Section 509 (in Chattisgarh) and the overall issues involved.
Section 509 IPC
Ingredients of Section 509 IPC
Section 509 of the Indian Penal Code,1860 criminalises-
- words,
- gestures or
- any act which is done with the intention of insulting the modesty of a woman.
The acts that can be considered to be within the ambit of this Section also includes-
- sounds,
- gestures or,
- exhibition of any object which is done with the intention to be heard or seen, and which intrudes upon the privacy of a woman.
Punishment under Section 509 IPC
Any person committing this crime is prescribed to be punished with simple imprisonment for a term which may extend up to three years, and also with a fine. Until 2013, the maximum punishment for this crime was simple imprisonment that might extend up to one year fine or both. However, by the passing of Act 13 of 2013 i.e., The Criminal Law (Amendment) Act, 2013, imprisonment was made mandatory and not interchangeable (according to the will of the sentencing authority) with a fine. Further, the maximum term for imprisonment was altered and increased.
Discussion on Section 509 IPC
The following are certain observations of this author related to the wording in this Section –
- The Section starts with the term ‘whosoever’ which implies that the provision is partly gender-neutral. Thus, a female can also commit this offence. However, on the flip side, this provision specifies that the crime can be committed only against women.
- An important note to be taken is that this provision criminalises intention to insult modesty and not outrage of modesty. Outraging modesty, as given in Section 354 of the Penal Code involves assault or the use of criminal force. Thus, if a comparison must be done, outraging modesty is a graver offence than insulting the modesty of a woman.
- For a very long time, courts had tried thousands of cases of insult/outrage of modesty without specifying what ‘modesty’ actually is. Finally, through the case of Ramkripal S/O Shyamlal Charmakar v. State of Madhya Pradesh (2007), the Supreme Court held that “the essence of a woman’s modesty is her sex…the culpable intention of the accused is the crux of the matter”. Essentially, ‘modesty’ is understood as a woman’s sexual dignity and autonomy that is acquired by their birth.
- As mentioned above, the intention of the accused is very important. It must be proved that the accused intended to insult the modesty of a woman, especially since the word ‘intention’ is specifically mentioned in the Section. In the case of Dy. Inspector Gen.Of Police & Anr v. S.Samuthiram (2012), a member of the law enforcement agency, police personnel, himself was caught in the act of eve-teasing of a married woman leading to the criminal and disciplinary proceeding, ending in his dismissal from service. The matter was then appealed with respect to the legality of that dismissal. The Court while allowing the appeal stated that the burden was on the prosecution to prove that the accused had uttered the words or made the sound or gesture and that such word, sound or gesture was intended by the accused to be heard or seen by some woman.
- In S. Khushboo v. Kanniammal & Anr (2010), the petitioner who was an actress had been charged with various offences including Section 509. Khushboo had given an interview in a magazine that was considered to be defaming women. Apart from the fact that no offence was made out against her at the end, the Supreme Court in relation to Section 509 stated that in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act. But in the given case, the words of the actress had been published in a magazine and thus an offence could not be made out even if they actually were capable of insulting the modesty of said women.
- In the crucial case of Mrs Rupan Deol Bajaj & Anr v. Kanwar Pal Singh Gill & Anr (1995), the act of the accused of slapping the posterior of a female I.A.S. officer in a gathering consisting of the elite of the society, when considered in the light of the sequence of events involving overtures, words used and gestures made, prima facie amounted to commission of the offence under Section 509.
- Another example of a convicted offence under this Section was seen in the case of Emperor v. Tarak Das Gupta (1925), wherein it was held by the Supreme Court that the sending by post of a letter containing indecent overtures to a woman can amount to an offence punishable under Section 509 of the Penal Code, 1860.
- The right to sexual integrity, dignity and autonomy is intrinsically linked to the right to privacy. Every woman has the right to self-determine her bodily affairs and infringing on those can amount to the intrusion of privacy. Hence, the words ‘intrudes upon the privacy of women’ has been rightly added to this Section.
- This Section describes simple imprisonment which is different from rigorous imprisonment. While a person sentenced to rigorous imprisonment must perform hard labour in prison, a convict sentenced with simple imprisonment is assigned tasks that are based on their requests and physical fitness.
- This Section was originally designed to curb eve-teasing and instances of street sexual harassment. However, it also includes acts done through cyber-space.
Classification of the offence
The offence under this Section is cognizable, bailable and compoundable with the permission of the Court before which any prosecution of such offence is pending and triable by any Magistrate.
- Cognizable offences: They are generally offences that are serious. The police or any other investigating officer can arrest the person accused of such an offence without acquiring a warrant from a Magistrate.
- Bailable offences: Persons who are accused of this offence are entitled to bail from the courts as a matter of right. These are offences where bail cannot be denied. In these cases, because the granting of bail is not a favour, the discretion of the judge does not come into question.
- Compoundable offences: Compounding of offences that can be resolved without a formal court trial. It mainly involves drawing up a compromise between the accused and the victim and can be done, as mentioned above, only with the permission of the Magistrate trying the case.
- Any Magistrate: Provided that there is the presence of appropriate jurisdiction, any Magistrate can try this offence regardless of whether they are First Class Magistrate or Executive Magistrate etc.
State Amendment by Chhattisgarh
Criminal laws and procedural laws are part of the Concurrent List of the Seventh Schedule and thus states can also amend the Indian Penal Code, provided their amendment is not contradictory to the Centre, which will lead to the prevalence of the Central law.
Section 509 has been amended by only one State, i.e., Chhattisgarh, which has been discussed in this part of the article. Through Section 6 of Chhattisgarh Act 25 of 2015, Section 509-A and Section 509-B has been inserted after the primary text of Section 509 in the Penal Code.
Section 509-A IPC
This Section talks about sexual harassment by relatives. This Section specifically criminalises any act that has the intention to insult the modesty of a woman by any person who is related to a woman by blood, adoption or marriage (apart from her husband). Criminalization of those acts which take advantage of the relational proximity and induce, seduce or threaten women has been done through the addition of this Section.
The punishment that has been prescribed is a minimum of one and the maximum of five years of rigorous imprisonment as well as liability to fine.
Section 509-B IPC
This Section talks about sexual harassment by electronic modes. It states that whosoever makes, creates, solicits or initiates the transmission of any comment, request, suggestion or image that has obscene or lewd content, is said to commit this offence. Moreover, to constitute this offence, there needs to be an intention to harass or cause discomfort and mental agony to a woman. The knowledge that such content will cause harassment or discomfort is also sufficient to constitute an offence under this Section. The punishment prescribed is rigorous imprisonment of six months to two years along with a fine.\
Is Section 509 IPC a meaningful provision in the current times
While assault cases were governed by separate provisions, Section 509 was incorporated within the Penal Code to punish lewd verbal and non-physical attacks against women. Further, Section 509 had also been seen to be used in harassment cases in the workplace. While a formal Act, Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act, 2013 (the POSH Act) has been enacted for these issues, this Act only invites civil damages and remedies while the criminal provision has jail term provisions. The POSH Act also is limited to the workplace while Section 509 is universal, thus making the latter still relevant. Section 509 is also important as it criminalises seemingly trivial acts like a stranger inviting a woman for a bike ride (In the case of Abhijeet J.K. v. State of Kerala (2020), it was held that an “act of affront to the decency and dignity of a woman cannot be considered as trivial in nature”).
Issues and conclusion
As seen in almost all sections related to sexual harassment and assault, they criminalise offences against women and not men, thus excluding a wide section of the population consisting of males and transgenders. Moreover, modesty has often been equated with chastity, which shows the wrong conception of the sexual dignity of women. While the intention of this Section is well-founded, the aim of this Section, apart from protecting sexual dignity also perpetrates certain ideas of controlling it. Any act that violates anyone’s sexual integrity and bodily autonomy should be a crime regardless of whether it “insults” someone’s “modesty” or not.
Having said that, this Section sufficiently has been able to give a structured redressal mechanism to women, who are constant victims of eve-teasing. However, a major impediment to women getting justice is the innate internalisation of eve-teasing as normal by women and lack of sufficient awareness. Lack of fast court mechanisms is also a major impediment to prompt reporting of such events, making women feel it’s better to tolerate them rather than getting into the hassle of court mechanisms. Obviously, the most ignored issue is that the root of all these problems is the sickeningly patriarchal view of women in society, something that even in the twentieth century has not been rectified.
References
- Section 509, Indian Penal Code, 1860
- Is Section 509 of the IPC a Meaningful Provision in Current Times?
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