Beyond Outrage of Modesty: Need for Sexual Assault Reform in BNS

By Kalyani Thakur (RGNUL Patiala)

Introduction

The Bhartiya Nyaya Sanhita (BNS), marks a new era in the realm of justice, promising to change the notion of crimes against women, and elevating their rights. This new legal framework aims to replace the outdated colonial-era Indian Penal Code (IPC) of 1860, enhancing efficiency and adapting to the evolving social and technological landscape. However, ongoing issues with crimes against women, particularly related to the outrage of modesty, remain a concern. Section 74 of the BNS is reminiscent of Section 354 of the Indian Penal Code (IPC). raises questions about the BNS’s ability to transcend gender stereotypes and address the changing meaning of “modesty” in the digital era.

Could the BNS have challenged current societal norms by eschewing historic precedents? In a virtual age wherein digital contacts predominate, should it have dabbled within the intricacies of modesty? These questions spotlight the necessity of an intensive evaluation of the BNS, that are pressing concern of the twenty-first century. The replication of language in Section 74 not only mirrors the echoes of the past but also perpetuates outdated paradigms, underscoring the urgent need for reform.

The sorrowful underreporting of instances and the large number of sexual assaults are a number of the concerning records on crimes against women in India, that spotlight the deficiencies in the modern-day lawbreaking system. Even if the majority of offenses fall below the category of “Assault on Woman with Intent to Outrage her Modesty” the BNS’s unaltered provisions highlight a missed opportunity for significant reform.

Missed Opportunities for Reform

The Ingredients Remain Unchanged

“If society trivializes modesty, violence against women would result”- Lalitha Dhar Pariha.  Section 354, of the IPC deals with “Assault or Criminal Force to Women with Intent to Outrage Her Modesty.” and has faced decades of debate and criticism. The BNS had an opportunity to rectify its shortcomings, yet Section 74 of the BNS mirrors Section 354 of the IPC. The ingredients remain the same: assault or criminal force against a woman with the intention to outrage her modesty. It’s as if the drafters of the BNS simply hit Ctrl+C and Ctrl+V without a second thought.

Unchanged Ingredients: Section 354 of the IPC

Without a comprehensive definition of “modesty” or “intention of outraging,” courts have treated victims with a patriarchal mentality. Furthermore, only in the presence of “penetration” ‘Rape’ becomes an offence as defined under Section 376 of the IPC. This gap between Sections 354 and 376 (rape) creates a grey area where lack of “penetration” results in lighter sentences. Courts frequently use the technicality of the lack of “penetration” as justification for imposing a relatively light sentence of up to two years in jail for molestation. Additionally, the maximum penalty for violations of Sections 354 and 355 is two years in prison, a fine, or both. Due to the possibility of severe violations carrying sentences longer than two years, the penalty period specified is unjust.

Judicial Interpretations and Court Cases

In Girdhar Gopal vs. State, the court observed that the Pujari petitioner brought a nine-year-old girl to his house under the pretense of presenting her with “Prashad.” He forced her to lie on the bed, covered her, and then sat on her. He then requested the girl to take off her clothes while he stripped off. Subsequently, her brother and neighbors saved the girl. The court determined that the accused had violated Section 354 and sentenced him to a year in prison. This case involved a Pujari—a person highly regarded and seen as religious—committing an infraction against a young girl. Given the significance of the evidence, the accused should have received a heavier sentence in jail and a hefty fine.

Several High Court verdicts highlight the ongoing difficulties in deciding cases involving the outrage of modesty, highlighting the necessity of significant reform. In one particular case, the Orissa High Court’s ruling overturned a man’s conviction under section 354, because it is unlikely that the accused with his younger brother could outrage the modesty of his aunt.  Furthermore, the Delhi High Court’s recent directions raise concerns about the suitability of punitive measures in cases of sexual harassment, even while it is admirable that they aim to promote reconciliation between parties.  Though well-intentioned, the court’s order to the accused to arrange a bus journey for elderly residents of an assisted living facility serves as a sharp reminder of the shortcomings in addressing the seriousness of crimes against women.

Call for Comprehensive Legal Definitions

In the “laboratories” of the lower courts, judges make decisions based on established norms of practice. Alternatively, they may haphazardly decide how to proceed in an unfamiliar route. The one path stops the development of legal doctrine and practice, while the second will unavoidably result in inconsistent rulings. The lack of a broad and generous interpretation of “modesty” and “intention of outraging” under Section 354 makes the predicament in both cases more uncomfortable. Because the law holds such importance in modern society, we must define it precisely and unambiguously.

Gender-Neutral Approach

The legal landscape has evolved since the IPC’s enactment in 1860. We live in an era where gender equality is not just a buzzword but a fundamental right. Why limit the offense to women? Men can also be victims of assault with the intent to outrage their modesty. The language of section 354 in the BNS reinforces a binary understanding of gender, excluding LGBTQ+ individuals from protection. By framing gender-based violence as male perpetrators and female victims, the law perpetuates harmful gender stereotypes. It portrays men as inherently aggressive and women as inherently passive. The BNS missed the chance to adopt a gender-neutral approach to gender-based violence. They could have framed the offense as “Whoever assaults another person with intent to outrage their modesty.”

The language of section 354 in the BNS reinforces a binary understanding of gender, excluding LGBTQ+ individuals from protection. By framing gender-based violence as male perpetrators and female victims, the law perpetuates harmful gender stereotypes. It portrays men as inherently aggressive and women as inherently passive. The BNS missed the chance to adopt a gender-neutral approach to gender-based violence. They could have framed the offense as “Whoever assaults another person with intent to outrage their modesty.”

Relevance in the Digital Age vis-a-vis Outrage to modesty

People inked the IPC when typewriters clacked and pigeons carried messages. They crafted it in a different era, devoid of smartphones, social media, and cybercrimes. With the rise of digital communication platforms and social media, instances of cyber harassment and non-consensual sharing of intimate images have become increasingly prevalent. What constitutes an outrage to modesty in online interactions may differ significantly from traditional interpretations. Collecting evidence of digital harassment and online violence can be complex and challenging. Perpetrators often exploit anonymity and encryption technologies to evade detection and accountability. The BNS could have redefined “outraging modesty” to include online harassment, cyberbullying, and revenge porn but chose to stick to archaic language.

Defining “Modesty”

What exactly constitutes “modesty”? The IPC left it open to interpretation, leading to inconsistent judgments. The BNS could have provided clarity. Is it about clothing, behavior, or personal space? We’ll never know because Section 74 also remains silent on this matter. In the dictionary, whatever is not offensive, fairly excellent, fair, according to accepted social norms, kind, and respectable is what is meant by the word decent. A woman’s modesty would naturally be considered insulting if the dictionary definition of the word is followed, which includes actions that are indecent, unjust, cruel, unreasonable, and defamatory. These behaviors could take many different shapes. Everything is based on the people’s customs and beliefs.

For example, a rural lady might consider it impolite to raise her purdah in front of her father-in-law. She views this conduct as egregious and betraying her modesty. Pulling one’s hair or hand, pushing, blocking someone’s path, or grabbing a lady by the arm is also offensive. Such actions are considered cruel and immoral. This Section creates an offense that serves both the lady’s interests and public morality and decency. What will this section cover if someone uses illegal force or assaults their spouse? It addresses actions against both the individual and public morality and society.

Suggestion from Committees regarding Outrage of Modesty

Back in 1993, the National Commission for Women (NCW) formed a Sub-Committee that recommended a complete overhaul of the IPC’s provisions on sexual assault. They suggested replacing the term “outraging modesty” with “touching with the intention of having a sexual relationship.” The Sub-Committee stated that the statute ignored the actual nature of sexual assault, making its language and intent antiquated. They recommended changing the definition of molestation, which until recently was defined as assault or criminal force with the intent to “outrage the modesty” of a woman. The Sub-Committee noted that the phrase “outraging the modesty” was antiquated and carried connotations of chastity common in Victorian morals. They suggested classifying molestation as touching with the intention of having a sexual relationship.

Further, in 2013, The Justice Verma Committee also recommended rewriting Section 354 to use the term “sexual assault” instead of “outraging the modesty of women.” When the IPC was revised in 2013, this modification was not included. If it had been included in the new Code, it would have marked a significant shift away from terminology that evoked colonial morality, which was founded on our legal standards of honour, chastity, and modesty.

Illustrations Highlighting the Issue

Consider Maya, a young woman who endured harassment and assault at work from her colleague Rahul. This behavior reflects societal norms that trivialize or normalize such actions. Despite her resistance and attempts to seek help, authorities dismissed or ignored Maya’s complaints. They suggested she tolerate Rahul’s actions for the sake of workplace harmony.

Filing a complaint under Section 354 of the IPC posed challenges due to societal perspectives ingrained in the legal system. Victim-blaming attitudes further traumatized Maya and deterred others from seeking justice. Lacking support from her workplace and community, Maya encountered delays and procedural hurdles in her case. The legal framework often shifted the burden of proof onto Maya, perpetuating injustice and discouraging victims from seeking recourse. The focus on societal norms failed to hold Rahul accountable, perpetuating a cycle of injustice. Modesty remains undefined, making the law’s application dependent on societal norms and perceptions. Without a clear definition of modesty, subjective interpretations create discrepancies in legal proceedings. Subjective interpretations often undermine the protection of women’s rights in legal proceedings.

Conclusion

The BNS was given the opportunity to lead the way, but it opted for mediocrity instead. Section 74 is a holdover from the past and a missed chance to modernize justice for the twenty-first century. The BNS misses a major chance for reform by maintaining uncertainty and rejecting a victim-centric approach. Legislators must prioritize comprehensive modifications that uphold justice, gender equality, and women’s rights. Born in 2023, the BNS aimed to dismantle archaic provisions and shed colonial baggage. The BNS sought a new legal framework resonating with a free nation’s aspirations. However, Section 74’s treatment of “Assault to Women with Intent to Outrage Her Modesty” still echoes colonial morality.