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. 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 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.
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.
After going through the project, we reach to a conclusion that the both the sections and their elements need to be given a broader interpretation in order to deal with rising offence of sexual harassment of woman. With the degradation of the Indian society, both the sections should be enforced and applied so as to create a deterrence effect on the society.
Vishaka and ors v. State of Rajasthan JT 1997 (7) SC 384
 Section 509 IPC criminalises a ‘word, gesture or act intended to insult the modesty of a woman’ and in order to establish this offence it is necessary to show that the modesty of a particular woman or a readily identifiable group of women has been insulted by a spoken word, gesture or physical act as held in S. Khushboo Vs. Kanniammal and Anr (AIR2010SC3196)
 AIR 1963 P H 443
 2006 (1) KLT 249
 Times of India, December 22,2005 , p.8
 Zafar Ahmad, AIR 1963 All 105
 1984 CrLJ 745
 Supra, see footnote 9