Criminal force and assault against women

1. Assault or criminal force to outrage modesty: section 74 (old s.354 IPC)

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, is punished with imprisonment of not less than one year, extending to five years, and fine.

The elements:

• the victim is a woman (s.2(35): a female human being of any age);
• assault (s.130) or criminal force (s.129; “force” is defined in s.128) was used on her;
• the accused intended to outrage, or knew it likely that he would outrage, her modesty.

The Sanhita does not define modesty. In Rupan Deol Bajaj v. Kanwar Pal Singh Gill, 1995 INSC 616, (1995) 6 SCC 194, a senior police officer slapped the posterior of a woman IAS officer at a party in front of guests. The Court held that the essence of a woman's modesty is her sex, and the test is whether the act, judged by the reaction of a reasonable person, is capable of shocking her sense of decency. The intention or knowledge of the accused is the decisive ingredient; the woman's own reaction is relevant but not conclusive. The conviction was upheld.

Because the culpable state of mind is that of the accused, the offence can be committed even against a girl too young to understand the act or a woman who is asleep.

2. Sexual harassment: section 75 (old s.354A)

A man who commits any of the following is guilty of sexual harassment:

• (i) physical contact and advances involving unwelcome and explicit sexual overtures;
• (ii) a demand or request for sexual favours;
• (iii) showing pornography against the will of a woman;
• (iv) making sexually coloured remarks.

Clauses (i) to (iii): rigorous imprisonment up to three years, or fine, or both. Clause (iv): imprisonment up to one year, or fine, or both. The workplace context is governed separately by the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, which gave statutory form to the guidelines in Vishaka v. State of Rajasthan, 1997 INSC 604, (1997) 6 SCC 241. That Act provides civil remedies through internal committees; s.75 provides the criminal one.

3. Assault with intent to disrobe: section 76 (old s.354B)

Whoever assaults or uses criminal force to any woman, or abets such act, with the intention of disrobing her or compelling her to be naked: three to seven years and fine. The offence is complete with the assault and intention; actual disrobing is not required.

4. Voyeurism: section 77 (old s.354C)

Whoever watches or captures the image of a woman engaging in a private act, in circumstances where she would usually expect not to be observed by the perpetrator or anyone at his behest, or disseminates such an image: first conviction, one to three years and fine; second or subsequent, three to seven years and fine.

• Private act (Explanation 1): watching in a place reasonably expected to give privacy where the victim's genitals, posterior or breasts are exposed or covered only in underwear, or she is using a lavatory, or doing a sexual act not ordinarily done in public.
• Consent to capture is not consent to share (Explanation 2): where she consents to the image being taken but not to its dissemination, dissemination is an offence.

5. Stalking: section 78 (old s.354D)

A man commits stalking who:

• (i) follows a woman and contacts or attempts to contact her to foster personal interaction repeatedly despite a clear indication of disinterest; or
• (ii) monitors her use of the internet, e-mail or any other form of electronic communication.

It is a defence that the conduct was pursued to prevent or detect crime by a person entrusted with that duty by the State, or under any law, or was reasonable and justified in the particular circumstances. Punishment: first conviction, up to three years and fine; second or subsequent, up to five years and fine.

6. Word, gesture or act to insult modesty: section 79 (old s.509)

Whoever, intending to insult the modesty of a woman, utters any word, makes any sound or gesture, or exhibits any object in any form, intending it to be heard or seen by her, or intrudes upon her privacy: simple imprisonment up to three years and fine. Physical contact is not required. Lewd remarks, obscene gestures and sending obscene objects or images are typical. The BNS adds “in any form”, which plainly reaches electronic messages.

7. Comparison at a glance

• Force needed: s.74 and s.76 (assault or criminal force); not ss.75(iv), 77, 78, 79.
• Offender: “whoever” in ss.74, 76, 77, 79; “a man” in ss.75 and 78.
• Mental element: intention or knowledge to outrage modesty (s.74), intention to disrobe (s.76), intention to insult modesty (s.79).
• Repeat offences: higher punishment on second conviction for voyeurism and stalking.

8. Problem

X repeatedly sends messages to his former classmate Y although she has blocked him on two platforms and told him to stop. He then finds her new number and sends her an obscene image. What offences?

Issue. Whether X's conduct amounts to stalking, insulting modesty or sexual harassment.

Law. Section 78(1)(i) (contact repeatedly despite clear indication of disinterest); s.79 (exhibiting an object in any form intending it to be seen by her); s.75(1)(iii) (showing pornography against her will).

Application. Blocking him and telling him to stop is a clear indication of disinterest; continued contact is stalking. The obscene image is an object exhibited to her with the intention of insulting her modesty, and, if pornographic, also shown against her will.

Conclusion. X is liable under s.78 and s.79, and arguably s.75(1)(iii). The Information Technology Act, 2000 (s.67) may also apply to transmitting obscene material electronically.

How this is examined

“Criminal force and assault against women” was set as an essay in recent KSLU papers. Take the sections in order, giving the elements, the punishment and an example for each, and use Rupan Deol Bajaj for the meaning of modesty. Short notes: voyeurism, stalking, sexual harassment.