INTRODUCTION
The
terms sexual harassment has been defined as – an unwelcome sexually determined
behavior (whether directly or by implication) as:
a) Physical
contact and advances;
b) A
demand or request for sexual favours;
c)
Sexually coloured remarks;
d)
Showing pornography;
e)
Any other unwelcome physical, verbal or non-verbal conduct of sexual nature
This
offence of sexual harassment has not been dealt anywhere specifically under the
Indian Penal Code. However, following the definition stated above, we find that
the offence which falls within the bracket of this definition has been dealt
under section 294, section 354 and section 509 of the IPC.
Section
294 deals with obscene acts and songs. Section 354 deals with the case of
assault or criminal force to women with intent to outrage her modesty. Section
509 talks about words, gestures or act intended to insult the modesty of a
woman.
In
this project, the focus will be on section 294 and section 509 of the IPC.
Firstly, the concept of these two sections has been explained in the project
and then an analysis of the two has been presented in order to develop a
broader understanding of the offences under these two sections.
SECTION
509 –
This
section says that- Whoever, intending to insult the modesty of any woman,
utters any word, makes any sound or gesture, or exhibits any object, intending
that such word or sound shall be heard, of that such gesture or object shall be
seen, by such woman, or intrudes upon the privacy of such woman, shall be
punished with simple imprisonment for a term which may extend to one year, or
with fine, or with both.
This
section is referred as the Eve Teasing Section. The object of the section is to
protect the modesty and chastity of a woman.
The
essential elements of the section are:
- Accused
uttered any word, made any sound or made a gesture or exhibits any object
or intrude the privacy.
- Accused
intended that words uttered, sound made or gesture shown or object
exhibited seen or heard by the woman.
- It
has to be directed towards a woman or group of women.
There
is a difference between Section 354 and 509. Section 509 specifically talks
about the insult and modesty of the women whereas Section 354 deals with
outraging the modesty of the women.
Now
the question that comes for consideration is what is meant by the term modesty.
The term has not been defined in IPC. In the famous case of Major Singh
Lachhman Singh vs The State on 30 May, 1963,the Shorter Oxford English
Dictionary (Third Edition) definition of the word “modest” in relation to woman
has been taken. It says that modesty is “Decorous in manner and conduct; not
forward or lewd; shame fast”. Hence, when used for men, it means the
quality of being modest, and in relation to woman, “womanly propriety of
behaviour; scrupulous chastity of thought, speech and conduct”.
Webster’s
New International Dictionary of the English Language (Second Edition) amplifies
the definition of “Modest” by adding “observing the proprieties; free from
undue familiarity, indecency, or lewdness’.
In the
case Swapna Barman Vs. Subir Das , “Under Section 509 that the word ‘modesty’
does not lead only to the contemplation of sexual relationship of an indecent
character. The section includes indecency, but does not exclude all other acts
falling short of downright indenency.”
Recently
in 2007 the SC defined Modesty as “The essence of a woman’s modesty is her
sex.”
An
insult to the modesty of the woman is an essential ingredient of this offence.
If a man exposes his person in an indecent way or use obscene words which he
intend that it should be heard or his obscene drawings should be seen, he is
held to be an offender under s.509 of IPC. The intention to insult the modesty
of woman must be coupled with the fact that the insult is caused. It means that
the other party understands that he is insulted. If a person intrudes upon the
privacy of a woman, then also he is considered to be liable under this section.
The
intention to insult the modesty is very important as held in Santha vs State Of
Kerala on 16 December, 2005[7]. And even when a man exposes his private organs
to a woman, he can also be charged under section 509 of IPC. The offence may
occur in private or public place.
As per
the Justice Verma Committee Report, certain modifications should be done in
Section 509 of the IPC. The Committee has suggested that use of words, acts or
gestures that create an unwelcome threat of a sexual nature should be termed as
sexual assault and be punishable for 1 year imprisonment or fine or both.
Recently
the criminal law (amendment) ordinance, 2013 was passed in which section 509 of
the Penal Code, for the words “shall be punished with simple imprisonment for a
term which may extend to one year, or with fine, or with both”, the words
“shall be punished with simple imprisonment for a term which may extend to
three years and shall also be liable to fine” shall be substituted.
SECTION
294
Section
294 of the act says that- whoever to the annoyance of others-
a.
Does any obscene act in any public place, or
b.
Sings, recites or utters any obscene song, ballad or words, in or near any
public place,
Shall
be punished with imprisonment of either description for a term which may extend
to three months, or with fine, or with both.
The
key ingredients of this section are:
- The
accused-
- Did
some act,
- Sang,
recited or uttered any ballad;
- That
such act, singing etc. was obscene
- That
it was done in public place
- It
caused annoyance to others.
This
section is not gender specific, and the offender as well as the victim can be
both male and female. The essential condition to be satisfied is that the
obscene act or song must cause annoyance. Since annoyance is a mental faculty
of a person, therefore it has to be derived from the facts and circumstances of
the case. In other words, the facts and circumstance has to be considered in
order to conclude whether the act caused any annoyance or no.
Now,
with regard to the concept and meaning of the word ‘obscene’, it keeps varying
from place to place. It differs in accordance to the circumstances- cultural,
social and economical. In the Indian context, even kissing in public place by a
married couple is considered to be obscene, and the persons doing so can be
charged with doing indecent act in public place. Whereas the same act in
western countries is absolutely acceptable. Where the accused addressed openly
two respectable girls who were strangers to him, in amorous words suggestive of
illicit sex relations with them and asked them to go along with him on his
rickshaw, he was held to have committed an obscene act.
Further
in the case of K.P Mohammad v. State of Kerala, the court held that the
performance in a public place, such as hotel and restaurant of cabaret dance
and devoid of nudity and obscenity judged according to the standards of our
country, is permissible and is not in any way liable to be banned. This
judgement shows a very controversial stand quite contrary to the general belief
held by the people of our country. However, the same view was held by the
Bombay HC in a judgement in April 2005, when they quashed the proceedings
against a dance bar owner ruling that section 294 IPC would be attracted only
when annoyance is caused to others.
ANALYSIS
If we
analyze the definition of the term sexual harassment, we find that the key
ingredients covered under the definition have been dealt under section 294 and
section 509 of the IPC. The definition of sexual harassment talks about
‘sexually coloured remarks’ and ‘pornography’. Now this sexually
colored remark can either be verbal or non- verbal. This gets covered under
section 294, as the section talks about any ‘song’(verbal) or ‘act’(non-verbal)
which are obscene. Obscenity comes in various forms- by way of talking or by
gestures. Obscenity also comes in through pornography, which is an element of
sexual harassment. This is how section 294 covers the offense of sexual
harassment.
Section
509 specifically talks about infringing the modesty of women. If seen in
general parlance then sexual harassment of a woman directly infringes the
modesty of a woman. This harassment can come in the form of ‘words’, ‘gesture’,
‘act’ or ‘exhibit’ of objects. This gets covered by section 509.
Thus,
the two sections cover the offense of sexual harassment of woman.
However,
the two sections have a key loophole with reference to the punishment. Section
294 prescribes punishment for 3 months at maximum. Section 509 prescribes
simple imprisonment for maximum of one year. However, seeing the present
scenario of India, where the offense of sexual harassment has increased by leaps
and bounds, and the offenders managing to escape the liability because of such
meager punishment, we cannot afford to stay with such reformative punishment.
Rather, steps need to be taken to enhance rigorous punishment which will have
deterrence effect on the future offender.
0 Comments