By Harshita Gupta

Indians and for that matter, all Hindus hold the mythological work of Mahabharata holy. As for recognition and imbibing the essence of that work and its divinity—the idea seems too farfetched. For instance, we know how Shri Krishna protected the modesty of Draupadi when her saree was being pulled off in front of spectators inclusive of her family and the subjects of the King. Maybe things haven’t really changed much since then to the present today with relation to demeaning women, one thing has: now women don’t have Lord Krishna as their savior, what we have is a jury and codified laws which sadly and unfortunately fail to understand the concept of modesty, it’s meaning and application.

Section 354 of the Indian Penal Code says that anyone who assaults or uses criminal force towards a woman with the intention of outraging or knowing that such action would outrage her modesty would be punished for a term not less than 1 year extending up to 5 years along with a fine. Section 10 of the code defines ‘woman’ as a female human being of any age, which should ideally include even infants and children who may not understand the severity of assault they are subjected to. Sadly, the code doesn’t define the subject matter of the section and that is ‘Modesty’. Judges on various instances have attempted to define it and even consulted the dictionary meaning. The Hindi word for modesty is ‘adab’ which includes respect, a respectable style of saying things and addressing others; Islam uses the word ‘haya’, which means shame and refraining from doing anything indecent out of fear of God. The most restrictive meaning is given by Oxford Dictionary’s 8^th edition which says that modesty is dressing so as to not show your body or attract sexual attention.

It becomes difficult to comprehend to women as to how ones’ style and preference of clothing can be a determining factor in providing justice against sexual assault w.r.t to dictionary meaning of modesty. Predators can feel excited and lustful irrespective of women wearing salwar-kameez, saree, burqa or mini-skirt with a crop-top. Instead of questioning the modesty, chastity and decency of the women we should be raising questions about the mental state of the culprits and sending them to asylums for treatment. We need to understand that a woman is not built in a mold, society doesn’t get to decide what she should do and how she should behave; men are not scrutinized and criticized for how they are then why are women? If men drink and smoke that defines their masculinity, if women do the same then are declared of having immoral character and not being modest or chaste enough.

Certain judgments from the Supreme Court and High court judges regarding this raise questions of sanity regarding their understanding and interpretation of the law. For instance, in State of Punjab v. Major Singh, the then CJI A.K. Sarkar, in his dissenting opinion said that he doesn’t think any reasonable man would say that an infant female child of 7.5 months possesses womanly modesty and since she doesn’t, there could be no way that the accused be convicted for having intended to outrage her modesty or known that his act (causing injury to her private parts) could have resulted into this, thus he be held not guilty. In Emperor v. Tatia Mahadev, the Magistrate was of the opinion that ‘the girl being only 6 years old was too young to have any sense of modesty developed.’ However, this judgment was overturned by the appellate court where Justice Batchelor and Justice Rao of Bombay HC on analyzing the facts again said that section 10 includes women of all ages and the fact that the 6yr old victim screamed and ran indicates that she felt her modesty to be outraged. Again, in Girdhar Gopal v. State, Justice Dixit said that it is unnecessary to consider the age of the girl child under section 354 and that in the case it is clear how the girl refused to remove her clothes and shouted, thus it would be wrong to say that she had not developed a sense of modesty and the actions of the accused are clearly an offense making his conviction justified. The case of  State of Punjab v. Major Singh brought out that a girl possesses from birth the modesty that is the attribute of her sex, therefore, now one cannot take the defense that since the victim did not develop a sense of modesty (because of age), the monstrous actions be not held guilty under section 354.

Modesty has to be about the inner character, respect, speech and beauty of the heart. Outraging the modesty of woman should include insulting her for everything that she embodies and trying to use her as an object whatever her age may be.  Acquitting the culprit on lack of evidence or benefit of the doubt is despicable and shameful in such cases. A more pitiable practice that is prevalent all over is how the existing law and legal procedures humiliate a victim much more than the culprit. The section has seen some amendments in the form of sections 354 A/B/C/D owing to Criminal Law (Amendment) Act, 2013 which has widened its scope and now includes sexual harassment and punishment for same, disrobing, voyeurism and stalking. The judiciary has started to recognize the faults in the society and its patriarchal structure but while on the surface we may seem to be moving towards a free and safer world, in reality, women are still struggling in shackles, bound by the cage of patriarchy and gender inequality. Women won’t tolerate such violation of their bodies, rights and being for much longer now. Not anymore.

Harshita Gupta is a 2nd-year LL.B. student at Jindal Global Law School.

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