Misusing Section 354: Why a recent HC ruling should worry us all
A recent court ruling upholding an FIR charging a coaching class chain owner in Mumbai of violating Section 354 violates the intent of the law -- and represents all that is wrong with our justice system.
"Even if you keep your hand on the shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly," said Bombay High Court Justice Naresh Patil, ruling against Machindra Chate's appeal urging the court to squash an FIR filed under Section 354 of the Indian Penal Code.
This seemingly pro-women pronouncement ought to hearten those of us concerned about sexual harassment, except it does not.
The problem here is that even the bare facts of the alleged crime committed by Chate do not appear to rise to the level of a Section 354 offense. The owner of a chain of coaching classes is accused by the victim of abusing and pushing her away in "such a way that made her feel ashamed". This inappropriate physical contact, however, occurred in the context of a heated altercation between Chate, students and their parents over syllabus-related issues -- and in the presence of two other girls and a boy.
The question is not of Chate's innocence, as such. He may be guilty of straightforward assault and/or of violating Section 504 (intentional insult with intent to provoke breach of peace) -- which is the other charge filed against him. The issue here is whether such an act, however criminal, meets the standard of Section 354 which states: "Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby 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."
The term "outrage the modesty" is, of course, wide open to interpretation, but the Supreme Court did offer some clarity in a 2007 judgement. The Times of India reported at the time:
For over a century courts have tried thousands for the offence of "outraging the modesty" of a woman without a precise definition of what constitutes a woman's 'modesty'. And now, the Supreme Court has finally defined modesty. Its definition: "The essence of a woman's modesty is her sex."
The result of the labour of the Bench comprising justices Arijit Pasayat and SH Kapadia will help fill a glaring void in the Indian Penal Code, 1860, but the scope of the definition of 'modesty' as mentioned in Section 354 appears to go far beyond what framers of the code possibly had in mind.
"The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse...would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence," the Bench said in a judgement that has drawn from several verdicts by different courts.
By this standard, Chate's alleged crime does not meet the criteria of Section 354 primarily because there is no evidence that the inappropriate contact had anything to do with the sex of the victim. As Chate's lawyer argued in court, "It was a scuffle, where was the intent to molest her?"
In response, the judges referred to the infamous KPS Gill who was convicted under Section 354 for slapping the posterior of Rupan Deol at a party, using his conviction to conclude, "To say there was no intention [to outrage modesty] is not possible." It takes great judicial latitude to compare slapping a woman's behind in a state of inebriation to shoving her in the course of an argument. And even more so to further conclude that even keeping a hand on a woman's shoulder can be constituted as outraging her modesty -- if she chooses to interpret is as such.
This kind of "enlightenment"—which violates the intent of the original law—does women no favours. It is precisely this kind of misuse of Section 354—both by the police who booked Chate under 354 when they had many other options and the court that has foolishly upheld the decision -- that aids and abets the many misogynists who resist strengthening sexual violence laws in this country. Much as the gross abuses of the anti-dowry act have long enabled so-called men's rights activists to attack a much-needed law -- and ignore the many victims of domestic violence.
False anti-dowry cases allow such men to play victim, and portray *all* women as conniving harridans ready to use their gender as a weapon. Cases like Chate will allow much the same to happen to Section 354, especially its revised subsections which allow a broader interpretation of sexual offenses. But as this case shows, the blame lies not with women per se—many of whom are real victims of sexual and domestic violence, and whom the law often fails to protect—but with the authorities who deploy the Indian Penal Code at their personal whim.
Writing on the issue of free speech (and the poor protection it receives in our courts), Suhrith Parthasarathy writes, "But, collectively, the Supreme Court’s jurisprudence in allowing speech to thrive is so poor as to make the prospect of restraining prior governmental action or more principled decisions from the lower judiciary an abandoned dream. The court seems to lack the philosophical bent of mind to consider certain rights as inviolable, as superior to the impulses of the majority."
This inability to carefully consider the intent of the law, and assess the weight of an individual complaint afflicts our courts across the board. This is why we get a bewildering variety of verdicts which rely not on true jurisprudence but the arbitrary interpretation of the individual judge. Where one can decry sex before marriage as immoral, the other can deem a hand on the shoulder as potentially sexual. One set of High Court judges can overthrow Section 377 while another pair at the Supreme Court can reinstitute it with equal ease. The result is a judicial system that fails to protect the spirit and intent of the laws it is entrusted to uphold. Justice becomes just another game of russian roulette, luck of the judicial draw.
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