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  • Writer's pictureThe Gender Security Project

When modesty matters more than the human

The Indian Penal Code talks about protecting the modesty of a woman, but conveniently forget the woman herself. A woman is still treated as a property.

The Indian Penal Code of 1860 continues to govern criminal activities in India. So whether it’s murder or robbery, assault or battery, sedition or defamation, rape or causing miscarriages, the sole repository (besides other ancillary instruments of legislation that have come up to address specific crimes) of authority for the security sector to address crime comes from the Indian Penal Code.

It has been about a century and a half since it was passed, and it continues in most of its original form.

While the jury is still out there on many provisions of the Indian Penal Code – right from the interpretation to the question of adequacy of punishment – two provisions continue to drive home the patriarchal notion that a woman is but property.

Section 354

It says that the “Assault or criminal force to woman with intent to outrage her modesty” is punishable. The section explains that “Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will there by outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

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, or 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.”

The crux of the section is not to penalize the assault of or use of criminal force to a woman with the intent to outrage her person – but her ‘modesty’.

What is modesty?

What this concept of “modesty” means is not mentioned in the Indian Penal Code. The law allows statutes to be interpreted with dictionaries – for most of these obfuscating words (note the deliberate non-use of confusing, as a, well, simpler alternative. I’m a lawyer, after all.

In a 1967 decision, by the Supreme Court again – ‘State of Punjab vs. Major Singh’ the crux of the question before the court was whether a girl, aged seven and a half months, could be considered to be possessed of `modesty’ which could be outraged. The majority judgment ruled that an act done to, or in the presence of a woman was suggestive of sex – and therefore, according to contemporary social standards, any such act amounts to a violation of Section 354. One of the judges on the bench constituting the majority 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”.

Relying on this decision, the Supreme Court in ‘Rupan Deol Bajaj v. KPS Gill,’ asserted that the “ultimate test for ascertaining whether modesty has been outraged is, is the action of the offender such as could be perceived as one which is capable of shocking the sense of decency of a woman.” Recourse was sought to the Shorter Oxford English Dictionary, which describes modesty as the quality of being modest (Oh?) and in relation to women, meant “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct” and the word ‘modest’ in relation to women was defined in the dictionary as “decorous in manner and conduct; not forward or lewd, shamefast.”

The court also relied on the Oxford English Dictionary (1933 Edition – note the devotion to all things archaic) where the meaning of the word `modesty’ was explained as “womanly propriety of behaviour; scrupulous chastity of thought, speech and conduct (in man or woman); reserve or sense of shame proceeding from instinctive aversion to impure or coarse suggestions”.

In the time since this last decision, Section 354 and Section 509 continue to operate. While some have cited these provisions as woman-friendly or a-route-to-gendered-justice, these two provisions reassert a ridiculous notion, that the “modesty” of a woman is valued more than a woman is. Why not protect the woman? Why is her body, her mind and her choice secondary to her ‘modesty?’

This ‘modesty’ is what encourages a culture of ‘honour’, femicide – whether as foeticide, infanticide or otherwise, and a sense of disregard for the bodily integrity of a woman.

This ‘modesty’ is what encourages a culture of ‘honour’, femicide – whether as foeticide, infanticide or otherwise, and a sense of disregard for the bodily integrity of a woman. With provisions like this in place, how can a woman be called empowered – if her choice, her right to be the final sovereign with the final say on her body and mind is not respected, and instead, blatantly disregarded? It is this ‘modesty’ that leads to honour killings. It is this ‘modesty’ that forces women out of education and access to development because they are not safe.

Empowerment does not come from selfies with a daughter. The status of a woman does not change with clicking pictures with your daughter in tow and tweeting them. It is this unholy attachment of importance to ‘modesty’ that made people abuse women for having an opinion on the Selfies with a Daughter campaign. Worse still, the selfie campaign saw a competition being made out of it: why were some fathers and daughters given more importance than the others? Was their show of pride for having a daughter valued more than the others’? One report even spoke of messages from those who did not have daughters expressing regret that they cannot participate.’ It is disheartening that the regret was at the inability to participate – not that they didn’t have daughters. I’m not nit picking here, but it clearly shows the slip between the cup and lip in the campaign.

While, on the outside, it is an appreciable campaign to project the pride families should take in having and raising daughters, it isn’t enough if there is no change in the system. Mindsets can change, but that change can be sustained only when there is an actionable change in all the allied spheres in which one operates.


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