Outraging the modesty of a woman under Indian criminal law

Is modesty an attribute of a woman's sex or is it a patriarchal gauntlet? Does the law on 'outraging modesty' need reinterpretation in the new post-colonial Bharatiya Nyaya Sanhita?

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A case was recently filed against Mahua Moitra by the chairperson of the National Commission of Women, Rekha Sharma, for 'outraging the modesty of a woman' under the Bharatiya Nyaya Sanhita (BNS), 2023.

The criminal charges relate to an allegedly lewd remark that Moitra made against Sharma on the social media platform X (formerly Twitter).

This article analyses the offence of 'outraging the modesty of a woman', focusing on the criminal law provisions as well as the interpretation by courts in India.

Provisions related to 'outraging modesty of a woman' under criminal law

Sections 74 and 79 of the BNS deal with 'outraging the modesty of a woman'. The offence of 'outraging the modesty of a woman' is not new and the BNS has incorporated almost identical provisions that existed under the Indian Penal Code (IPC), 1860 (the erstwhile Indian criminal law).

Therefore, to understand the offence of outraging modesty, the related provisions of the IPC will serve as a useful guide.

Sexual harassment comprises a wide range of behaviours. Recognising this, the provisions of the IPC criminalised specific sexual harassment offences such as rape, voyeurism, stalking and human trafficking. In cases of sexual harassment against women (not amounting to rape), the provisions on 'outraging the modesty of a woman' under the IPC were often invoked, serving as a catch-all provision.

Sections 354 and 509 of the IPC dealt with 'outraging the modesty of a woman'. Section 354 criminalised assault or use of criminal force against any woman, with the intention or knowledge that the assaulter will thereby outrage the woman's modesty.

Section 509 made certain acts committed against a woman (such as uttering words/sounds, making gestures, exhibiting any object, intruding upon the privacy of the woman) punishable, if done with the intention to 'insult the modesty of a woman'.

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The term 'modesty' was not defined or explained under the IPC, thereby leaving it to the courts to interpret the legal provisions in any given case.

Interpretation of 'modesty' by the judiciary

The key issue before the Supreme Court in State of Punjab versus Major Singh (1966) was at what age a female attained 'modesty'.

In this case, a person had been accused of causing injury to the private parts of a seven-and-a-half-month-old female baby and had been charged with the offence of outraging the baby's modesty under Section 354.

Justice Gurdev Singh of the Punjab High Court referred to the meaning of modesty in the 1933 edition of the Oxford English Dictionary as 'womanly propriety of behavior, scrupulous chastity of thought, speech and conduct (in men or women), reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions.'

In other words, modesty referred to the "accepted notions of womanly behavior and conduct". Accordingly, the high court judge tied the notion of modesty to "public morality and decent behavior", holding that the objective of the offence of modesty was to "protect women against indecent behavior of others which is offensive to morality".

However, on appeal, the Supreme Court laid down its own test that "when any act done to or in the presence of a woman is clearly suggestive of sex according to the common notions of mankind", that act was covered under Section 354.

Justice Ranadhir Singh Bachawat of the Supreme Court noted that "the essence of a woman's modesty is her sex" and "from her very birth she possesses the modesty which is the attribute of her sex".

Interestingly, the then Chief Justice of India Amal Kumar Sarkar gave a dissenting opinion, holding that a female baby could not be said to possess womanly modesty. The differing interpretations of modesty by the Punjab High Court and the Supreme Court and even between the judges of the same Supreme Court Bench in this case indicate the varied meanings that one may ascribe to 'modesty', leading to further ambiguity in the absence of a legal definition.

The Supreme Court relied on Justice Bachawat's interpretation of modesty in its 2004 ruling in Raju Pandurang Mahale versus State of Maharashtra. The Supreme Court observed that modesty is an attribute that a woman possesses due to her sex and held that modesty in relation to a woman is "the reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions".

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In the Raju Pandurang Mahale case, the Supreme Court laid down that the test to determine whether a woman's modesty has been outraged is "whether the action of the offender is such as could be perceived as one which is capable of shocking the sense of decency of a woman".

The Supreme Court also gave some examples of outraging a woman's modesty, for instance, "the act of pulling a woman, removing her saree, coupled with a request for sexual intercourse". The Supreme Court reaffirmed this view in Ramkripal versus State of Madhya Pradesh in 2007.

Arguably, the test laid down by the Supreme Court has ended up creating more ambiguity by introducing vague and subjective terms such as 'decency'.

In a recent judgment, the Bombay High Court applied this test in holding that stalking a woman does not shock the decency of a woman, and therefore, does not amount to outraging the modesty of a woman.

In practice, the test of outraging a woman's modesty is difficult to apply, often leaving it to the court's subjective assessment of a given fact situation. The judgment by the Bombay High Court in the stalking case may be contrasted with its 2021 judgment in Shrikrushna versus State of Maharashtra, where it was held that the act of throwing a chit on a woman that professes love for her and contains poetic verses, "albeit extremely, purely written" is sufficient to outrage her modesty.

Even an act done with 'pure' intentions, therefore, may amount to outraging a woman's modesty.

In 2022, in Taisuf-ul Hassan versus NCT of Delhi, the issue arose whether saying "fuck off" to a woman amounted to outraging her modesty. The accused's counsel argued that "fuck off" was not a sexually coloured remark as its dictionary meaning is "to leave or go away, used especially as a rude way of telling someone to go away".

Therefore, there was no intention to outrage the woman's modesty. Rejecting the accused's argument, the additional sessions judge held that "fuck off" was a sexually coloured remark as it was American vulgar slang and "abusive, offensive and humiliating". Accordingly, the court held that there was a prima facie case of outraging a woman's modesty.

Moving away from a modesty-based approach to sexual harassment

The problem is that at present, the offence of 'outraging the modesty of a woman' is used as a catch-all provision in cases of sexually harassing behavior that does not fall within the ambit of sexual offences specifically defined under Indian criminal law.

Also read: One kiss provokes another ban: Some reflections on the Madhya Pradesh High Court's judgment

Such a residual provision is necessary to hold perpetrators of sexual harassment to account. However, the law must be clearly defined so that it is efficacious in providing redress to sexual harassment victims and can be applied consistently by the courts.

Some argue that sexual harassment should be defined in terms of women's dignity and bodily integrity instead of relying on outmoded notions of modesty.

In fact, the main criticism of the BNS is that it "reinforces colonial ideas". This includes retaining the use of 'modesty' in the BNS to describe sexual harassment, which is rooted in a "patriarchal understanding of sexual violence". Like its predecessor, the BNS, too, does not clarify the meaning of modesty.

Our approach to understanding sexual harassment needs to change from an honour–chastity–modesty framework to one based on sexual violence as a "violation of sexual autonomy".

In this regard, the recommendations of the Justice Verma Committee (which was set up in the aftermath of the Nirbhaya gang rape in 2012 to suggest revisions to the IPC) are particularly instructive.

Referring to South African law, the committee noted that "sexual assault replaces the common law offence of indecent assault". The committee recommended that Section 354 should be reenacted as an offence of sexual assault "to include all forms of non-consensual non-penetrative touching of a sexual nature" and "using words, acts or gestures towards or in the presence of another person which create an unwelcome threat of a sexual nature or result in an unwelcome advance".

Such a definition would be wide enough to cover the various forms of sexual harassment which fall short of rape. Alas, the committee's recommendations were not ultimately reflected in the 2013 amendments to the IPC.

Our present understanding of the offence of outraging modesty is related to public morality and decency, which are ambiguous and subjective terms. When applying the BNS 2023, courts should interpret the modesty provisions in line with the recommendations of the Justice Verma Committee, instead of reinforcing colonial notions of crimes against women.