#India- To hell with modesty- #Vaw #Law #Patriarchy


The vocabulary of sexual assault framed in the 19th century still persists in the IPC


Language is seldom value-neutral. It is more like a looking glass that shapes perceptions, creates moral codes and tells us who we are and what we stand for or against. The vocabulary of sexual assault, as laid down in the Indian Penal Code and used in the courtroom, is no exception. Not only does it betray a lack of empathy for the victim but also shows distinct gender insensitivity and the influence of patriarchy.
Take for instance the use of the word, modesty, in legal parlance. Section 354 of the IPC criminalises “assault or criminal force to woman with intent to outrage her modesty.” The Oxford English Dictionary (2005) defines modesty as “dressing or behaving so as to avoid impropriety or indecency, especially to avoid attracting sexual attention”. In other words, any woman dressed “immodestly” is part of the problem because she seems to be attracting attention. Incidentally, the word “modesty” does not appear in the law specifically pertaining to peno-vaginal penetrative sexual assault, but in those concerned with molestation and sexual harassment. Section 509 of the IPC penalises “Word, gesture or act intended to insult the modesty of a woman.”
Activist lawyer Madhu Mehra of Partners for Law in Development (PLD) insists that “language is not an innocent side issue; rather, it is the way we adjudicate and perceive rape victims.” PLD has made a submission to the Justice Verma Committee raising the issue of the vocabulary of the country’s rape laws. Adds Dr Ranjana Kaul, lawyer and member of the Delhi Commission for Women, “The language currently used in our statute is terribly Victorian and patriarchal. It looks at ‘modesty’ as something to be guarded. There is an utmost urgency to give clarity to what sexual assault means.”
The language goes back to 1860 when the Indian Penal Code drafted by Lord Macaulay came into practice. Though the IPC has been amended countless times since, the immense concern with a woman’s private sexual conduct remains. And it seems that on the issue of women’s sexual autonomy, present-day Indian jurisprudence is in agreement with the 19th century British administrator and the era he belonged to. Judges through the decades have tried wrapping their heads around the issue, without once coming up with the idea of formally acknowledging that not just the word, but the entire concept of sexual “modesty” is outdated.
Consider this. Back in 1966, while hearing a case of a penetrative assault on a seven month old, the then Chief Justice of India A K Sarkar made some interesting observations. The accused was being tried for “outraging the modesty of a woman” under section 354, and not rape. The judgment, eventually passed in the favour of the prosecutor, had the following remarks by Justice Sarkar: “I do not think a reasonable man would say that a female child of seven and a half months is
possessed of womanly modesty. If she had not, there could be no question of the respondent having intended to outrage her modesty or having known that his act was likely to have that result. I would for this reason answer the question in the negative.”
How the lack of “womanly modesty” nullifies the violence of an assault is a point that Justice Sarkar neglected to make. He did, however, make one allowance for the women of India. “If it is proved that criminal force was used on a sleeping woman with intent to outrage her modesty, then the fact that she does not wake up nor feel that her modesty had been outraged would be no defence to the person doing the act. The woman’s reaction would be irrelevant in deciding the question of guilt,” he added in the judgment.
Fast forward to March 2007. The apex court of the country made an observation that set a precedent for codifying women’s sexual behavior and autonomy within the legal system. A Supreme Court bench comprising Justices Arijit Pasayat and S H Kapadia ruled: “The essence of the woman’s modesty is her sex”. Critics say this observation only reinforces objectification of women. Says Madhu Mehra, “Modesty has nothing to do with a woman’s sex. This reduces her personhood to a sexual characteristic.”
The much talked about Ruchika Girhotra case dragged on for over two decades in various courts. The 14-year-old Ruchika was molested by a senior police officer in Panchkula. After three years of criminal intimidation, systematic physical torture of her brother and threats of violence followed by her complaint, the young teenager ended her own life. Everything Rathore did was covered under “outraging the modesty of a woman” for which he was convicted. The 2010 Punjab Haryana High Court judgment in relation to the case goes so far as to point to the exact moment when the young victim’s modesty was outraged. “The other act of the petitioner of encircling the waist and holding one hand of Ms. Ruchika and pushing her towards his chest is enough to conclude that her modesty had been outraged at that moment itself.”
As of now, the Criminal Law Amendment Bill still retains the word “modesty”. “Whoever has drafted these laws has no knowledge of feminist jurisprudence,” says lawyer Vrinda Grover. Until that comes about, the women of India will have to guard what the courts deem to be their “honour”.

WORDY AFFAIR: Victorian phrases in IPC are at odds with today’s India. (Above) girls at Slutwalk in Delhi last year


Modesty of dress and Indian culture

An illustration of the family of Shiva, consis...

Image via Wikipedia


I write to complain about the abysmal standards of modesty I am noticing in Indian society. All bad things–sensationalist TV, obscene movies, diabetes among elders, pickpocketing, dilution of coconut chutney in Saravana Bhavan–are a result of Evil Western Influences. However, to my surprise, in this issue of modesty, even the Great Indian Culture (we had invented Maths and pineapple rasam when westerners were still cavemen) seems to encourage this.

The problem, sir/madam, is that revealing attire is being worn. Deep-neck and sleeveless tops, exposed legs–and these are just the middle-aged priests! Some priests are even (Shiva Shiva!) doing away with the upper garment. And I am told some temple managements even encourage this.

But this is the worst thing. They are doing this in front of ladies and Gods, with no shame at all. Just the other day, I saw a priest without upper garments making an offering to God (which itself is shameful) and then coming out just like that to give prasadam to the ladies. The whole sanctity of the ceremony is spoilt. Plus, what evils may result if they speak to the ladies like that.

You have to worry about a society in which boys and men are allowed to dress this way.

The few who wear full dhoti and kurta are wearing some thin muslin material through which you can clearly see the outline of their underwear and banians and sometimes even read the name of the manufacturer. This is made worse because some young boys are following new fashions and wearing printed underwear in gaudy colours (Karmam Karmam).

Some more modest young people are wearing full pant with shirt and that is much better. However, this Evil Western Invention called zip is encouraging them to answer nature’s call at the side of the road in full view of the public.

And what is this abomination called shorts? Is it really necessary that Indian boys need to play sports in which they have to show their legs? I think they can just stick to games like chess and cricket (it’s not like they are doing well in other sports anyway). And swimming is another problem. We have a long tradition of bathing with clothes, why should they wear little Speedos just for this? I think it is just an excuse to show off their bodies.

But really, I would like to know what the parents of such boys are doing. Why are they not bringing up their sons correctly? Maybe all this is because of this trend of working fathers, who are neglecting their children for the sake of their careers. My biggest worry is that these boys and men will not be able to get married if they continue like this. Which mother-in-law would like to visit her daughter only to be given coffee by a son-in-law wearing a banian exposing his underarm hair? (And that too, Bru coffee since boys are not taught these days how to make good coffee.)

All this immodesty will also lead to other issues. Once boys realise it is alright to expose, you don’t know where it will end. Boys will be out of control.

I propose that we start imposing dress codes on Indian boys and men straight away. A good strategy is to stereotype and call them names based on the way they dress. And also, any time a boy or man is sexually assaulted, we should completely forget about the attacker and instead ask questions like “Ah, but what was he wearing?”

This is the only way we can safeguard our society.

By- Suchi Govindrajan

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December 2021
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