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Law and Gender: Notion of ‘Modesty’ in Indian Criminal Law

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By Ishani Mookherjee

To protect the ‘modesty’ of women, the Indian Penal Code, 1860, punishes acts which insult or outrage their ‘modesty’, under Section 509 and 354 respectively. This paper argues that though ‘modesty’ is not defined in the IPC, according to the definitions laid down by the Courts, ‘modesty’ is a gender specific notion, associated to women as a ‘class’ and is based on sexist assumptions of womanly virtue and chastity. Also, the test for the offence embodies the Courts’ protectionist approach, which reduces women to a subordinate position in a patriarchal society.

Section 509 punishes words, gestures or acts, with an intention to ‘insult’ the ‘modesty’ of ‘women’. This includes utterance of words, sounds or gestures, or showing of an object, intended to be heard or seen or intrusion upon privacy of such woman; and does not require the element of ‘physical touch’ to be criminalized. Section 354 is an aggravated form of the offence under Section 509. It involves an element of ‘touch’ in the form of assault or criminal force to any ‘woman’, with either the intention or knowledge that it is likely to ‘outrage’ ‘her modesty’. It punishes all cases which constitute non-consensual non-penetrative sexual assaults, like groping, disrobing, etc.

The common object of both the sections is to protect the ‘modesty’ of the woman. However, the word ‘modesty’ and what constitutes an ‘outrage’/‘insult’ to modesty is not defined in the IPC. Nonetheless, the Courts have laid down definitions of ‘modesty’ and tests to ascertain whether it has been outraged or insulted.

The Courts have defined ‘modesty’ as “womanly propriety of behavior, scrupulous chastity of thought, speech and conduct; sense of shame proceeding from instinctive aversion to impure or coarse suggestions.[1] It refers to freedom from indecency; a regard for propriety, in dress, speech or conduct and being shame-fast.[2]

In the landmark Major Singh Case,[3] while deciding whether a 7½-months-old female child possessed modesty that could be outraged, the Court held that the essence of a woman’s modesty is her sex. Young or old, intelligent or imbecile, every woman possesses modesty capable of being outraged, irrespective of her age. Even a child of tender age, though sexually dormant, from her very birth possesses modesty. ‘Modesty’ is an attribute, associated with females as a class, as a virtue owing to her sex.[4]

As it can be inferred from the interpretation of the Courts, ‘modesty’ is assumed to be a gender specific attribute – it is only a woman who possesses modesty that can be outraged/insulted. This concept of modesty is based on the Victorian notions of chastity,[5] and the accepted norms of a virtuous and refined Indian woman. By focusing on the woman’s dress, speech and conduct and on her being shame-fast, the Courts concentrate on the victim rather than the perpetrator. ‘Modesty’ in this context becomes a form of sex-consciousness peculiar to woman[6] – who is required to dress, speak and behave properly. This identification of women with their physical appearances and behavior forces them to conform to the traditionally prescribed patriarchal social and cultural roles and results in denial of rights to autonomy and self-expression.[7]

The victim almost needs to be an image of an ideal ‘modest’ woman, an epitome of femininity, chastity and pavitrata (purity). For instance, when a 5½-year-old girl had no hesitation in telling her mother exactly what had happened and having regarded her age, one of the Judges was of the opinion that she probably hadn’t developed a sense of modesty.[8] This constant focus on ‘virtuous woman’ produces images of a “chaste domestic woman”, as well as, a “loose public woman” evoking contradictory responses of appreciation and depreciation towards woman as a class.[9]

By rejecting a gender neutral view, the Courts provide no legal redress to similar acts of sexual assault towards people of other genders. The law presumes that either men have no ‘modesty’ or their ‘modesty’ is impossible to outrage/insult or even when it is outraged/insulted, they can take care of themselves without being protected by law.[10] Also, the entire discussion regarding ‘modesty’ has no reference to the LGBTQ community.

Although such a distinction is made simply on grounds of sex, rather than considering it to be violative of Article 14 and 15 of the Indian Constitution, this distinction is justified on grounds of the myth of ‘chaste and modest’ women.[11] Even after the J.S. Verma Committee Report suggested the use of gender-neutral terms like sexual assault, unwelcome advances, violence and violation of bodily integrity, the word ‘modesty’ has neither been removed nor defined in these Sections.

Further, for ascertaining whether the woman’s modesty has been ‘outraged’ or ‘insulted’, the Courts have accepted that the test is whether the act is ‘capable of shocking the normal sense of a woman’s/feminine decency’.[12] The offence can be perpetrated by anyone, i.e. both males and females.[13]

Under Section 354, the Courts held that the test of ‘outrage’ of modesty is an objective test- whether a reasonable man would consider the act of the offender as intended to or known to be likely to outrage the modesty.[14] It is the culpable intention (or knowledge) of the accused which is the crux of the matter. The reaction of the victim is relevant, but its absence is not always decisive, for instance, when she is sleeping, of unsound mind, unconscious, or unable to appreciate the significance of the act.[15] Acts outrageous to women’s modesty are also considered to be outrageous to public morality and decency, [16] and such acts cannot be deemed as ‘trivial’.[17] Similar tests are also applied under Section 509.

From the aforementioned test, according to me, it can be observed that the Courts have followed a paternalistic and protectionist approach while dealing with the issue of sexual assault of ‘modesty’ by reinforcing the stereotype that ‘modesty’ is associated only with women, relating it with public morality and applying an objective test from ‘a reasonable man’s perspective’. Law’s intervention becomes an act of chivalrous protection of women’s honour, natural domestic purity and chastity[18] and of public interest and decency. While on one hand, the Court emphasizes on the victim’s ‘modest’ conduct and virtue, on the other, it sometimes ignores her reaction and subjective interpretation of the act, which is supposed to outrage/insult ‘her’ modesty.

Thus, the test laid down by the Courts is based on sexist assumptions about male and female sexuality, which deprives females of their rights to agency. Virtue is spelled out in patriarchal terms of masculine courage and feminine chastity, wherein masculine courage is to protect feminine chastity.[19] By requiring men and women to consistently follow such distinctions, to uphold their respective identity, the law institutionalizes traditional patriarchal attitudes towards women, wherein they are considered subordinate to men. This perpetuates and justifies gender-based violence as a form of ‘protection or control of women’. Conversely, gender-based violence helps to maintain women in subordinate positions in a patriarchal society.[20]

Therefore, both the definitions and the tests embody a kind of reasoning, which show the double standards with regard to sexuality accepted and adopted by the Court. These standards are governed by the male-dominated patriarchal society, wherein the man is the protector and the woman is the modest victim, who is to be protected. Thus, to conclude, in my opinion, the ‘protection’ of a gender-specific notion of ‘women’s modesty’, based on sexist assumptions of feminine chastity and an objective ‘paternalistic’ test, questions the women’s character, denies people of other genders legal redress against sexual assault, and becomes a form of gender violence, reducing women to a subordinate position of a ‘victim’ and depriving them of their right to agency in a deeply patriarchal society.

[1] As defined in the Oxford English Dictionary (1933 Ed), upheld in State of Punjab v Major Singh AIR 1967 SC 63, Tarkeshwar Sahu v State of Bihar 2006 8 SCC 560.

[2] Mrs. Rupan Deol Bajaj and Anr v Kanwar Pal Singh Gill and Anr AIR 1996 SC 309.

[3] State of Punjab v Major Singh AIR 1967 SC 63.

[4] State of Kerala v. Hamsa 1988 3 Cri 161 Kerela HC.

[5] Commented by the National Commission for Women Sub-Committee, constituted in 1993, mentioned in Kirti Singh, ‘The Movement For Change: Implementation of Sexual Assault Laws’ (2012-13) 39 (¾)  India International Centre Quarterly pp. 259-269 http://www.jstor.org/stable/24394290 Accessed 3 November 2017.

[6] Charlotte Perkins Gilman, The Dress of Women: A Critical Introduction to the Symbolism and Sociology of Clothing (Chapter 2, pp. 10, Greenwood Publishing Group 1915).

[7] Kanchan Mathur, ‘Body as Space, Body as Site: Bodily Integrity and Women’s Empowerment in India’ (2008) 43 (17) Economic and Political Weekly pp. 54-63 http://www.jstor.org/stable/40277391 Accessed 3 November 2017.

[8] Soko v Emperor, AIR 1933 Cal 142, Jack J.

[9] Kanchana Mahadevan, ‘The ‘Virtuous Woman’: Law, Language and Activism’ (2008) 43 (17) Economic and Political Weekly pp. 44-53 http://www.jstor.org/stable/40277390 Accessed 3 November 2017.

[10] Ved Kumari, ‘Gender Analysis of the Indian Penal Code, Essays in honour of Lotika Sarkar’ (1999) 145 Eastern Book Company.

[11] Mahadevan (n 9).

[12] Raju Pandurang Mahale v State of Maharashtra, AIR 2004 SC 1677.

[13] Girdhar Gopal vs State 1953 CriLJ 964.

[14] Keshab Padhan v. State of Orissa 1976 Cut LR (Cr) 236.

[15] State of Punjab v Major Singh AIR 1967 SC 63.

[16] State of Kerala v. Hamsa (1988) 3 Cri 161 Kerela HC.

[17] Mrs. Rupan Deol Bajaj and another v Kanwar Pal Singh Gill and another AIR 1996 SC 309.

[18] Mahadevan (n 9).

[19] Mahadevan (n 9).

[20]Recognised by Convention on the Elimination of Discrimination against Women (CEDAW), ‘The Reform of India’s Sexual Violence Laws’ (2013) p.4.

Bio:
Ishani Mookherjee
studies law at Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana.

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2 Responses to “Law and Gender: Notion of ‘Modesty’ in Indian Criminal Law”

  1. Shivam Kumar

    The political angle in framing a law pertaining less obliquity or proper acknowledgement of victim is the widest lacuna witnessed so far. Redress can be wheeled only when a vivid enclosure can be reached for ‘modesty’. Being securely developed under the limelight- the draconian philosophy to breach the chastity can only be curbed with a law casting stringent emphasis over the trials of Section 509 & 354. A legal proceeding and less of contradiction is to be required. (A judicial ideology to define ‘Modesty’ with gradual definition under the conviction is the dynamic blind spot)

    Reply

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