This article has been written by Sarthak Mittal, a student at the Vivekananda Institute of Professional Studies of Indraprastha University, Delhi. This article delves into the actus reus and mens rea, which culminate in the offence of insulting the modesty of a woman. This article also expounds on the punishment relating to the given offence and the way in which it differs from the offence of outraging the modesty of a woman. The article also covers all the important case laws and illustrations relating to the given offence.
It has been published by Rachit Garg.
Table of Contents
Introduction
In the case of State of Punjab v. Major Singh (1967), Hon’ble Justice R.S. Bachawat succinctly defined ‘woman’s modesty’ as the essence of her sex. He succinctly observed that “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”. The English Oxford dictionary further defines the word ‘modesty” as “womanly propriety behaviour.” It is, therefore, clear that the legislature deliberately used the word “modesty” in Sections 509 and 354 of the Indian Penal Code, 1860 to extend protection to an automatic attribute that is peculiar to women. Whether an act outrages or insults the modesty of a woman is seen according to the standards of morality prevailing at that time in society. Such kinds of sections are largely based on the concept of public morality; thereby, the acts and words falling within the ambit of the sections will differ throughout time, country, and society.
What crime is defined under Section 509 IPC
The act of insulting the modesty of a woman has been criminalised by Section 509 of the Indian Penal Code. The offence is said to have been committed when any person utters any word, makes any sound or gesture, exhibits any object, or intrudes upon a woman’s privacy with the intention of such gestures or acts being seen by that woman or that such words or sounds be heard by that woman so as to insult a woman’s modesty. In the given offence the guilty conduct, or actus reus, can be construed widely to include any conduct that may not include a physical confrontation with the woman but is sufficient to abuse the woman in obscene terms. The criminal intent, or mens rea, for the given offence is that the person intends to make his conduct noticeable to the woman to intentionally insult her modesty.
In the case of State of Kerala v. Hamsa (1988), it was held by the court that even if the conduct of the accused goes unnoticed by others except by the victim, the conduct will amount to insulting her modesty. In the given case, the conduct of winking and beckoning a woman to the notice of others was found to be insulting to her modesty. Further, in the case of Sau. Anuradha R. Kshirsagar v. State of Maharashtra (1989), the accused hurled the following utterances towards fellow female teachers:- “Catch them by their hair, kick them on the waist, pull them out, and I will see as to how these lady teachers, who did not leave the hall, stay at Akola”. The Bombay High Court in the given case opined that the concept of “modesty” is concerned with the feminity that originates out of the female sex, and whenever there is an assault or insult to this feminity, the offence under Section 509 will be said to have been made. The court opined that in the given case, the threats made by the accused have nothing to do with this femininity, and thereby, they are not insulting the modesty of the woman. The court held that the given utterances hurled by the accused were threats that would amount to a common offence irrespective of the victim’s sex, and thereby sentenced the accused for the offence of criminal intimidation under Section 506 of the Indian Penal Code.
Essentials of crime under Section 509 IPC
For invoking Section 509, the intention of the accused to insult the modesty of the women should be proved. This insult can be caused by the following acts:-
- Uttering any word with the intent that such words be heard by the woman.
- Making any sound or gesture with the intent that such sounds or gestures be heard or seen by the woman.
- Exhibiting any object with the intent that such object be seen by the woman.
- Intruding upon the privacy of a woman.
The offence can be divided into two parts. Firstly, the intent to insult the modesty of women, and secondly, the means through which the given intention is given effect. The word “modesty” makes it clear that the conduct of the accused should intentionally target the femininity of the woman. It should be conduct in relation to women that is unscrupulous in the eyes of a reasonable man.
In the case of Swapna Burman v. Subir Das (2003), it was alleged that the accused constantly used to couple his name with the name of the complainant, knowing that the complainant was married. The accused used abusive language targeted towards the complainant, and that one day around 11:30 P.M., the accused entered into the complainant’s house compound and knocked on the door while calling her name and saying that the complainant’s life with her husband will not be a happy family life and that he should be her husband. The Gauhati High Court in the given case held that Section 509 does not only include making suggestions of sexual relations that are of an indecent character, but it will also include various other acts that are indecent and immoral in nature, and held that the acts done by the accused in the given case are of such an indecent and immoral nature. The court in the given case upheld the conviction of the accused.
In the case of Khushboo v. Kanniammal (2010), the court held that to attract Section 509, it should be established that the modesty of a particular woman or readily identifiable group of women has been insulted. Further, in the case of Abhijit J.K. v. State of Kerala (2020), the Kerala High Court held that any act that is affront to the decency and dignity of a woman cannot be considered to be of a trivial nature.
Punishment for crime under Section 509 IPC
The offence of insulting the modesty of a woman is a cognizable, bailable, and compoundable offence. Before the Criminal Law (Amendment) Act, 2013, the offence was punishable with simple imprisonment, which may extend to one year, or with a fine, or both. The suggestion for enhancing the punishment under Section 509 was reiterated by the Justice J.S. Verma Committee’s report on amendments to criminal laws (2013) and was originally suggested by the Law Commission’s 84th Report. The given report opined that increasing incidents of eve-teasing require enhancement of punishment under Section 509. The 2013 Amendment Act thereby, on the given suggestions, enhanced the punishment for insulting the modesty of the woman to simple imprisonment, which may extend up to a period of three years, a fine, or both.
When the accused is found to be culpable by the court for the offence under Section 509, the term of his imprisonment or the amount of fine will depend upon the nature of his conduct. If the conduct being punished is of a grave nature, the punishment will be stringent, whereas if the conduct is of a trivial nature, the punishment will be lenient. The court in such cases can also punish the offender with admonition or probation. While deciding the term of punishment, the court has to consider the ex-ante and ex-post factors relating to his decision. The court in such a case will also consider how far the conscience of society has been shocked by the act of the offender. The offence was made to punish the conduct, which did not include assault but was of grave nature, so as to insult the modesty of the woman and to curb the menace of eve teasing. The purpose of the provision is to provide women in our country with a safe environment, and thereby, the given object is also to be kept in mind while deciding the liability of the offender.
How to seek remedy under Section 509
The law provides two mechanisms for women to seek justice under Section 509. The victim can file an FIR (First Information Report) under Section 154 of the Code of Criminal Procedure, 1973. The offence being cognizable empowers the police to start an investigation without seeking prior permission from the court. The police, after completing the investigation, will submit a charge sheet to court, whereby, if deemed fit, the court will take cognizance against the accused. Once cognizance is taken, the court will frame charges against the accused and try the matter in accordance with the procedure prescribed in the criminal procedure code. The other method to set the criminal law in motion in cases under Section 509 is by filing a complaint before the magistrate under Section 200 of the Code of Criminal Procedure. Filing a complaint is beneficial because the complainant is advantageously placed in comparison to the investigating authorities to collect and present the evidence. It is pertinent to note that it is not necessary for the victim herself to file a complaint; it can be done by any other person as well. It is also pertinent to note that the offence is a bailable offence thereby, the accused will have a right to obtain bail. The court can ask the accused to furnish a bail bond and a security, but in no case can it incarcerate him without a conviction.
Relevance Section 509 contemporaneously
It would be erroneous to think that the given section has lost its relevance after the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. The given Act helps women seek redressal in cases of harassment faced at workplaces. It is imperative to understand that the Act provides for civil remedies and damages, whereas the Indian Penal Code provides for a criminal remedy. The Act is applicable only for incidents that took place at the workplace, whereas the Code provides for no such limitation. We can conclude that the Section has a wider scope than the Act and both are important and relevant in their own way.
Important case laws
In the landmark case of Ram Kripal v. State of Madhya Pradesh (2007), wherein the court held that in cases relating to outraging or insulting the modesty of a woman, the intention of the accused is the crux of the matter, and even the reaction of the victim is relevant; however, the absence of reaction is not always a decisive factor. Thereby, in cases of outraging or insulting the modesty of a woman, the reaction of the woman to such outraging or insulting conduct is always a relevant fact, but the fact of her omission to react may or may not be a relevant fact. The court observed that in a case where the accused with malign intentions touches the flesh of a sleeping woman or where the victim is a person who is unable to communicate verbally, under the spell of anesthesia, or an infant, the accused will be liable under Section 354 or 509 as the case may be irrespective of the absence of any reaction by the victim.
In the recent case of Varun Bhatia v. State and Anr. (2023), the Delhi High Court unfolded various connotations related to Section 509. In the given case, the contention levied against the accused was that he addressed the complainant as ‘gandi aurat’ in front of all the staff, which amounted to insulting her modesty. The court held that the words ‘gandi aurat’ when objectively assessed, seem to be impolite and offensive but are insufficient to provoke shock in a woman to invoke Section 509. The court in the given case also took into account the reaction of the complainant in light of the background to which the complainant belonged and held that the given words would not amount to insulting the modesty of the woman. The court also held that due to the lack of intention on the part of the accused to insult the modesty of the complainant, the court acquitted the accused.
The court also held that merely insulting the woman, misbehaving with her, being rude to her, or not behaving chivalrously as she expects you to behave will not amount to insulting the modesty of a woman. The court clarified that intent is the linchpin of this offence, wherein a deliberate remark or an action to demean the woman’s modesty will amount to the offence under Section 509. The court observed that this is this ‘intent’ that separates ordinary speech and expression from those actions that fall within the ambit of Section 509.
The court in the given case also held that the mere reason that a provision of law is gender specific does not mandate that a presumption be raised in favour of the given gender as well. Such a presumption can only be raised if it is specifically articulated in the given legislation. The court, based on the given legal proposition, held that the court should keep an impartial and neutral approach while deciding cases related to Section 509 and should follow well-established legal principles to adjudicate such matters. The court succinctly held that while dealing with any case, the court should be tipped in favor of justice and not towards any one party.
Conclusion
Section 509 of the Indian Penal Code aims to curb the menace of eve teasing and protect women from such conduct that affronts their modesty without the use of assault or criminal force but only through words or actions. The word “modesty” has been used deliberately by the legislators. A woman’s modesty is inherently linked to her gender, and thereby, all such conducts that are demeaning to the femininity of the woman are covered under the provision. The section is wide enough to include all such demeaning acts; however, it is the intention of the accused that becomes the crux of the matter. The accused to be made liable under the given provision should have a specific intention to use his words or actions to insult the woman’s modesty. In the absence of the given intention, the words or actions of the accused will be indifferentiable from normal speech and expression. To understand whether a word or action is capable of insulting a woman’s modesty, the test of reasonableness is to be applied. Apart from that, the social and cultural background of the victim and the prevailing standards of morality in society are considered.
Hon’ble Justice J.S Verma on 26th December 2012, while discussing the need for amendment in sections relating to offences against women, said, “The humiliating aspect of the crime against a woman is that her status in the hierarchical structure of society also obstructs the way of securing justice for her. Thus, her social status compounds her gender injustice”. Thereby, in all the offences against the woman, the judicial machinery and the investigation agencies should help the aggrieved woman seek justice and implement the provisions for their protection in the true spirit of the law.
Frequently Asked Questions (FAQs)
Does the mere use of abusive language with a woman culminate in an offence under Section 509?
In a recent case of State v. Ankit Shukla (2022), the court held that if the complainant merely alleges that the accused has hurled verbal abuses at her or that the accused has targeted vulgar abusive comments at her, it will not be sufficient to attract Section 509. The court held that the prosecution or the complainant is required to bring on record the exact nature or wording of the abuse alleged to have been hurled at her. If such language is seen as insulting to the femininity of the woman, then Section 509 will be attracted.
Can a woman be convicted under Section 509?
Section 509 starts with the word ‘whoever’ and thereby, it is clear that even a woman can be accused and convicted under Section 509. The section is gender-specific in the context of the victim. Thereby, only a woman can be a victim under Section 509 because the term ‘modesty’ is inherently linked to the female gender. However, modesty can be insulted or outraged by a woman as well as by a man.
What is the difference between Section 509 and Section 354?
Sections 354 and 509 of the Indian Penal Code are both aimed at protecting the modesty of a woman. However, Section 354 is graver than Section 509, as modesty under Section 354 is violated through actions like assault or criminal force. Thereby, Section 354 includes physical force or apprehension of physical force, whereas Section 509 only includes utterances, words, and objects and no physical force. Section 354 provides for a punishment of imprisonment of at least one year, which can be extended up to five years, and a fine, whereas Section 509 provides for a punishment of simple imprisonment for a period of three years, a fine, or both. The difference in the extent of punishment prescribed in both provisions also manifests the difference in the graveness of both offences.
Is Section 509 incorporated in the Bhartiya Nyaya Sanhita Bill, 2023?
Section 509 has been suggested to be replaced by Section 78 in the Bhartiya Nyaya Sanhita Bill of 2023. The Home Minister of India, Hon’ble Mr. Amit Shah, explained in his speech while introducing the given bill that the bill aims to place the provisions relating to offences against women and children before the offences against the state, unlike the Indian Penal Code. Thereby, the given section is renumbered to Section 78 in Chapter V. The verbatim definition of the offence and the extent of punishment remain unamended in the new bill. The given bill was introduced in Lok Sabha on August 11, 2023, and has been referred to the standing committee.
References
Ratan Lal and Dhiraj Lal’s Indian Penal Code (2020, 36th edition)
Indian Penal Code by K.D. Gaur (2020, 7th edition)
Ratan Lal and Dhiraj Lal’s Indian Penal Code (2018, 34th edition, volume III)
https://blog.ipleaders.in/overview-of-section-509-of-the-indian-penal-code-1860/
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