“Section 509 of Indian Penal Code : Crime Against Women”

Submitted by

Naimish Tewari
B.A.LL.B., Division E, 18010223093

of Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), Pune

In
January, 2020

Under the guidance of

Miss Meera Mathew & Mr. Vikram Singh
Assistant Professors

47/48, Opposite Nokia Siemens Building, A Block, Phase 2, Industrial Area,

Sector 62, Noida, Uttar Pradesh 20130

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 Certificate

The Term paper entitled “Section 509 of IPC” submitted to the Symbiosis Law School,
NOIDA for family law I as part of Internal assessment is based on my original work carried
out under the guidance of Miss Meera Mathew & Mr. Vikram Singh In January 2020. The
research work has not been submitted elsewhere for award of any degree. The material
borrowed from other sources and incorporated in the thesis has been duly acknowledged. I
understand that I myself could be held responsible and accountable for plagiarism, if any,
detected later on.

Signature of the candidate

Date:

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 ACKNOWLEDGEMENT

I, Naimish Tewari of Division E of Symbiosis Law School, Noida, batch of 2018-23 would
like to thank my IPC mentors for their expert guidance and positive criticism on the project.

I have invested my best efforts in this research project and I sincerely hope that the examiner
finds this project interesting and competent.

Signature

Date

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 TABLE OF CONTENTS

Certificate..................................................................................................................................2

ACKNOWLEDGEMENT.........................................................................................................3

Introduction & Jurisprudential aspect.....................................................................................5

Meaning & explanation............................................................................................................6

Research Questions...................................................................................................................7

1. Whether the publication of a statement calling for premarital sex in a magazine

constitutes an offense under section 509 of IPC?...............................................................7

2. Why is there a need for section 509 when section 354 fairly covers the aspect of

modesty?................................................................................................................................8

Suggestions & Conclusion......................................................................................................10

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 Introduction & Jurisprudential aspect

The Indian sub-continent has advanced to 2020, even after 70 years of our independence
India is majorly a patriarchal state and we as the Indian citizens cannot deny the fact that
women are frowned upon, the crime against women is increasing exponentially, more than
thirty thousand cases have been filed in the year 2017 1 relating to rape. The Constitution of
India, under Article 212 provides a right to life with dignity3 and not mere animal existence
and therefore the constitution imposes a duty upon the state to protect the dignity of these
women and that is why this section of the penal code is codified as a safeguard to feminine
dignity. Section 509 of the Indian penal code 4 is one of the provisions in the Indian penal
substantive law which fixes criminal liability upon a person who outrages a modesty of a
women. The main motive of this section is to protect the women’s chastity and modesty;

“Whoever intending to insult the modesty of a woman, utters any word, makes any sound, or
gesture, or exhibits any object, intending that such word or sound shall be heard, or 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 three
years, and also with fine”.

However, it has to be understood the there is no law, regarding the chastity of a man, which is
another proof that India is a patriarchal society. It is worth noting that, this provision is often
discussed with section 354 of Indian penal code5 the difference being 354 has an element of
– criminal force or assault, and the gravity of punishment. The amendment to the Indian
Penal Code in 20136 also prescribed a punishment under this section, so the objectives which
can be inferred from this section is that, the rationale of the legislature while amending the
act was to add a punishment under the originally drafted, section 509 by lord Macaulay, so it
was an effort of the state to prevent and curb these crimes against women which are
happening every now and then. It is also to be understood that the provision also,
1
World News, Diti Pujara, Gurman Bhatia, Karishma Singh and Raju Gopalakrishnan.
https://www.reuters.com/article/us-india-rape-factbox/statistics-on-rape-in-india-and-some-well-known-cases-
idUSKBN1YA0UV Last Retrieved on 21st of January, 2020.
2
Article 21, The Constitution of India, 1950
3
Comman Cause v. Union of India (2018) 5 SCC 1
4
Indian Penal Code, 1860, § 509.
5
Indian Penal Code, 1860, § 354.
6
The Criminal law (Amendment) Act, 2013. No. 13 of 2013

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complements the right to privacy which has held to be a fundamental right by the nine-judge
bench in the case of Justice K.S Puttasawamy v Union of India.7 Imparting a meaning to the
hundred- and fifty-pages which Justice D.Y Chandrachud wrote on bodily integrity and
privacy. Another limb or compliment to section 509 is also incorporated in the Information
Technology Act under 66E8 which is punishment for the violation of privacy. Therefore, we
can say that this provision is a safeguard to the security and integrity of women.

Meaning & explanation

That fact that, what exactly constitutes the violation of the modesty of a woman is something
which requires no explanation9 words which suggest lewd thoughts about women, or any
picture suggesting lewd thoughts about a woman without her consent can be said to be
entrenching upon her modesty. The essentials if to be identified which constitute this offense
are10 firstly, there should be an intention to insult the modestly of a woman, and secondly, it
should be caused by uttering some word, sound, gesture or with help of any object which will
in course of time be seen by the woman or even heard, or intrudes upon the privacy of the
woman. If a man enters the residence of a female person and tries to persuade her for making
a relation, it can be interpreted that an offense under section 509 of the Indian penal code is
committed.11

The provision is cognizable, bailable, non-compoundable offense and it is to be tried by a

magistrate of first class, and the maximum punishment of one-year, simple imprisonment.
This provision also, can be related with United Nations Declaration on the elimination of
violence against women & with United Nations Declaration on the elimination on violence
against women, which was also asserted in the Vishakha case12 it is also to be understood that
in this case, Supreme Court also laid down guidelines under article 142 13 to all the
organizations in how to have a mechanism to take steps against sexual harassment, it is also
to be understood that cases of domestic violence can also be coupled with this provision,

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Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1.
8
The Information Technology Act, 2000. § 66 E.
9
State Of Punjab vs Major Singh 1967 AIR 63.
10
Commentary on Indian Penal Code by GD gaur, 2nd edition.
11
Bankey, AIR 1961 ALL 131.
12
Vishakha v. state of Rajasthan (1997) 6 SCC 241
13
Article 142, The Constitution of India, 1950

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another provision for cruelty in the penal code is 498A14 and even the Domestic violence
Act15 the sexual offenses against the feminine community and the scale at which these
offenses are being committed is in itself a blunder against the rule of law.

Research Questions

1. Whether the publication of a statement calling for premarital sex in a

magazine constitutes an offense under section 509 of IPC?

The specific provision of 509, deals with an action which outrages a modesty of a women,
with a specific intention to do, however an advertisement calling for sexual relations might
not constitute an offense in this section. It is to be understood that the one thing which has to
be understood is that, there should be a specific intention to – outrage the modesty of a
woman, a statement in general, cannot be said to be violating the modesty of a woman, as it is
not targeting in specific and neither a group of women is affected, another argument is that
can be pitched is that, why would an advertisement for sexual relations be outraging a
modesty of a woman, another point of moot is what actually is the meaning of modesty, as
IPC does not define it if we go by the dictionary meaning it means – “decorous manner and
conduct” so what exactly, did the legislature meant by the modesty of women, however there
are number of judicial precedents defining it.

The case of S. Khushboo vs Kanniammal16 was a specific case which dealt with this issue,
and the ratio of the case was that there needs to be a specific woman or a group of women
who needs to be affected, a statement in general would not constitute an offense under this
section. Section 509 IPC criminalizes 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. Clearly this offence cannot be made out when the
complainants' grievance is with the publication of what the appellant had stated in a written
form.

14
Indian Penal code, 1860 § 498A
15
The Protection Of Women From Domestic Violence Act, 2005
16
S. Khushboo vs Kanniammal Criminal Appeal No. 913 Of 2010

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 2. Why is there a need for section 509 when section 354 fairly covers the
aspect of modesty?

When we compare section 354 with section 509 of the Indian Penal Code1 we find a lot of
interesting features in both these penal provisions in the Indian Penal Code. Section 354
provides for punishment for the offence of Assault or criminal force to woman with intent to
outrage her modesty. The section lays down that-

‘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.’

Section 354 is present in chapter XVI of IPC titles ‘Offences Affecting Human Body’, in the
sub chapter of criminal force and assault. The phrase used in the section is outraging
modesty. This outraging can be done by assault or criminal force to any woman. Now assault,
includes any gesture, preparation, intending or knowing that such a gesture or preparation
will cause a person to apprehend that the person who is making the gesture or preparation is
about to use criminal force to that person. But mere words do not amount to assault.

The meaning of assault as provided in the Penal Code if we apply to section 354 then the
natural consequence would be that if a person teases a woman and makes indecent comments
in such a situation so as not to use immediate criminal force or an apprehension in the minds
of the woman that he shall use criminal force after the remark or comment he commits no
assault and hence no offence under the section. Section 354 also talks of criminal force. The
definition of criminal force is that whoever uses force intentionally to any person without that
person’s consent, in order to commit an offence is said to use criminal force. The force as
used to define criminal force is defined in section 34917 of the Indian Penal Code.
Whereas section 509 provides punishment for the Word, gesture or act intended to insult the
modesty of a woman. The section lays down 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
17
Indian Penal code, 1860 § 359

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woman, shall be punished with simple imprisonment for a term which may extend to one
year, or with fine, or with both.’
Section 509 occurs in chapter XXII of the Code in the chapter ‘Criminal Intimidation, Insult
and Annoyance.’ The phrase used in the section is insults modesty and not outraging
modesty. The punishment is for uttering words, making sounds and gestures, exhibiting any
object intending that such word or sound shall be heard or the gesture or object shall be seen
by such woman or even intruding on the privacy of the woman. The interpretation of the
section would mean that eve teasing; whistling, showing indecent objects etc. would be
covered under this Section.

The number of cases and convictions are more under section 354 of the Indian Penal Code
and very few are under section 509. Outraging modesty can be termed or referred to as
molestation and insulting modesty can be referred to as eve-teasing.

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 Suggestions & Conclusion

The prima facie conclusion which can be inferred with respect to section 509 of the Indian
penal code is the number of convictions which is very less, it can be inferred that probably,
the section is not vast enough to incorporate offenders into it, however it can also be noted
that due to the patriarchal society which this country has, women in our nation are afraid to
come out and complain.

The reason which can deduced is probably due to the less term of punishment and the mode
i.e. simple imprisonment, so I would like to suggest that, there is a need for specific courts to
try offenses against women, as the crime against women is increasing on a great scale, and
the quantum of punishment should be obviously increased.

The awareness of law and its procedure is the most important thing which has to be
implemented, majority of the women of throughout our country are unaware of these laws
and their provisions which provide security to them and hence, the state should organize
seminars across the country for legal awareness amongst the Indian women community

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