Under Indian Penal Code, Chapter XVI deals with offences affecting the human
body out of which Section 349 to Section 358 deals with offences of criminal
force and assault. Under this ambit, offences of sexual harassment are covered.
Section 354 of Indian Penal Code, 1860 ( hereinafter referred to as IPC)
354. Assault or criminal force to woman with intent to outrage her modesty:
Whoever assaults or uses criminal force to any woman, intending to outrage or
knowing it to be likely that he will there by outrage her modesty, shall be
punished with imprisonment of either description for a term which shall not be
less than one year but which may extend to five years, and shall also be liable
For a clear understanding of this Section, we need to interpret some terms
used in it:
Assault and criminal force
"Assaults or uses criminal force" shows that there are two different things:
assault and criminal force. In common parlance, they are considered synonymous
but legally they are different concepts. Assault denotes the preparatory acts
which cause apprehension of use of criminal force. Assault falls short of actual
use of criminal force.
"To any woman" implies that only women can be the victim of the offence. Woman
is defined under Section 10 of IPC as a woman of any age. Therefore, the term
woman covers from an infant to a lady on her deathbed.
Intention and knowledge
Intention and knowledge both occur only in the place of the mind of the
criminal. Therefore, it has to be deduced from the acts itself. For example, a
man was trying to pull a woman' saree and asking for sexual favours. Here, his
act of asking for sexual favours combined with pulling the saree clearly shows
his guilty intention.
Another example, could be taken where the accused was
forcibly touching the posterior of the victim even after her clear show of
discomfort and when a passerby closed in the distance, he suddenly stopped and
ran away. His act of running clearly establishes knowledge on the part of the
What is modesty
Modesty is nowhere defined in the Indian Penal Code. Dictionary.com explains the
meaning of modest as free from ostentation or showy extravagance; also having or
showing regard for the decencies of behaviour, speech, dress,etc. Therefore, we
could infer that modesty in one way could be explained as the decency of that
woman. This decency is attached to her being a woman.
The case of State of Punjab v. Major Singh
, is a good illustration to understand
the concept of modesty.
In this case, Major Singh walked into the room where the victim was sleeping.
Victim being an infant girl of seven and a half months. He stripped himself
naked and caused injuries to the vagina of the victim by fingering.In the lower
courts it was argued in the defense that Section 354 demands that the offender
must have outraged the modesty
but in the present case no reasonable man will
say that an infant girl of seven and a half months will have modesty which could
be outraged. This contention although accepted by lower courts was rejected by
the Supreme Court and the accused was held guilty.
"The essence of a woman's modesty is her sex. The modesty of an adult female is
writ large on her body. Young or old, intelligent or imbecile, awake or
sleeping, the woman possesses a modesty capable of being outraged.. A female of
tender age--- has not yet developed a sense of shame and has no awareness of
sex,--- from her very birth she possesses the modesty which is the attribute of
When modesty is said to be outraged
The test to ascertain whether the criminal force or assault used by the accused
against the victim could be said to outrage the modesty of that victim is if it
is capable of shocking the sense of decency of the woman. In Raju Pandurang
Mahale v State of Maharashtra
, where the accused on a false pretext brought the
victim to the house of the co-accused and forced her to drink liquor. After
which he took her nude photographs of the victim. This act is capable of
shocking the decency of a woman therefore, he will be held guilty under Section
Is women's reaction relevant?
The reaction of women is very relevant in judging whether an assault amounted to
outrage of her modesty, but its absence is not always decisive. It is not always
necessary that the woman will ascertain the outrage to her modesty or
acknowledge it. Even if she doesn't realise what has happened, it will still be
considered a crime under the Section.
For eg. If an infant or a mentally challenged girl is the victim,she will not be
able to react or understand the matter but the perpetrator will be punished.
Defence of trivial offence against outraging modesty
In the case of Rupan Deol Bajaj v Kanwar Pal Singh Gill,
the victim registered a
complaint and a First Information Report (FIR) against the accused. In order to
quash the FIR, the accused moved to the High Court of Punjab and Haryana. The
High Court quashed the FIR stating that the harm caused is of trifling nature
and does not disclose any cognizable offence. The matter went to the Supreme
Court, in which The Supreme Court held the quashing of FIR as illegal. It
further held that when a matter is related to the modesty of a woman, under no
circumstance it can be termed as trifling.
Judicial view on false cases
In the case of State of Maharashtra v Satyendra Dayal Khare
, the Bombay High
Court held the accused liable and his defence for false implication was
rejected. It was observed that "no decent self-respecting woman would allow
herself to be used as a tool in the hands of her superiors to falsely implicate
other superior officer in such a serious charge as molestation with a view to
improve her prospects, in the organization, especially since the allegations
would be damaging her personal reputation and character".
But, it is submitted
that such a rule that a woman will not put her respect at stake can not be
applied in every circumstance. According to the Supreme Court, each case must be
determined with its own facts and circumstances as false case of Rape and sexual
assault is also common to the courts of law.
Type of offence under CrPC
Offence under Section 354 is a cognizable offence which is triable by the
Magistrate. This offence is Non-bailable.
Punishment prescribed by the Section
Amendment Act of 2013, brought some major change in punishment under Section 354
as "imprisonment of either description for a term which may extend to two years
or with fine, or with both" was replaced with "for a term which shall not be
less than one year but which may extend to five years, and shall also be liable
With these changes, a minimum punishment was set for one year which
was not present before, also maximum punishment increased to five years from two
years and fine was also made compulsory.
In order to curb the continuous increase in the cases of sexual harassment and
owing to very less amount of punishment there was no fear for law in the eyes of
the perpetrator. Therefore, Punishment was severed to deter the like minded
people from doing the offence.
Need for Criminal Law (Amendment) Act, 2013
In 2012, a heinous gang rape took place on the night of 16th December. Victim
along with his male friend took a private bus. There were already 6 other men on
the bus including the driver. Victim along with his friend had a quarrel with
those men during which Victim and his friend were brutally beaten up. Later, the
main victim was gang raped by those 6 men. Reports indicated that an iron rod
was inserted in the vagina of the victim that caused extensive damage to the
Later, both of them were thrown out of the bus to die. Female
victim died 6 days later on 22nd December. Police officials caught all the
accused persons. There was a huge outcry of people in support of the victim.
Government felt the need to amend the current laws related to offences against
women. The Justice Verma committee was formed to severe the punishment of
offences against women and to make society a better place for women.
This committee was constituted under Hon'ble Justice (Rtd) J.S. Verma, former
Chief Justice of India as Chairman; Hon'ble Justice (Rtd) Leila Seth, former
Chief Justice of HP and Shri Gopal Subramaniam, Former Solicitor General of
India as members. Among many other significant changes, it recommended to
harshen the punishment of Section 354 and to add sexual harassment and related
offences in IPC, which founded there way by Section 354A, Section 354B, Section
354C and Section 354D.
Offence of Sexual harassment and its punishment has been defined under Section
354A. Section 354A provides a number of acts out of which if any of the act is
committed the offence of sexual harassment will be completed.
- physical contact and advances involving unwelcome and explicit sexual overtures;
- a demand or request for sexual favours; or
- showing pornography against the will of a woman; or
- making sexually coloured remarks
Punishment prescribed of the first three instances will be rigorous imprisonment
for a term which may extend up to three years, or with fine, or with both.
Whereas punishment for passing sexually coloured remarks is imprisonment of
either description which may extend to one year, or with fine, or both.
Offence under Section 354A is a cognizable offence, triable by the Magistrate.
This offence is Bailable.
Difference between sexual harrassment in IPC and sexual harassment at workplace
Sexual harassment when done at workplace holds a different legal position than
sexual harassment at other places. Sexual harassment at workplace is governed by
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Under Fundamental Rights, sexual harassment is covered under Article 21 which
provides for right to life and personal liberty, whereas, sexual harassment at
workplace are covered under Article 14 which provides for gender equality, also,
Article 19(1)(g) which provides freedom to practice any profession, or to carry
on any occupation, trade or business and under Article 21 which provides right
to life and personal liberty.
Vishaka and Ors. v. State of Rajasthan
This as a landmark case dealing with sexual harassment. In this case, definition
of sexual harassment was given by the Supreme Court. The Supreme Court further
gave guidelines to be followed by employers and colleagues at the workplace. The
Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal)
Act, 2013 was passed in influence of this judgment only.
Disrobing a woman
- What men may normally consider to be cool but law may see as harassment
- Passing rude comments or jokes which are of sexual nature
- Forcible hug or deliberately brushing up against a person
- Touching posterior of a woman
- Trying to make contact with the woman even after her multiple rejections
- Peeping into changing rooms
- Sending pornographic content
- Asking for sexual favours, etc.
Disrobing a woman is covered under Section 354B of IPC. It states that any man
who assaults or uses criminal force or abets to disrobe a woman or compel her
to be naked such an act, intending to disrobe a woman will be committing an
offence under this Section.
An immediate implication of the provision is that the use of force or assault
against woman with intent to disrobe her or make her naked against her wish,
unlike in the past, will no more amount to mere outraging the modesty of a woman
and the perpetrator will not get lighter punishment of Section 354.
Punishment prescribed for this offence is minimum 3 years extending up to seven
years along with a fine.This offence is a cognizable offence, triable by the
Magistrate. It is a Non-bailable offence.
Voyeurism is covered under Section 354C of IPC. It provides that any man should
be convicted under this Section if he watches or records a woman who is doing
some private act and does not expect to be observed by anyone.
The "private act" is explained by Explanation 1 as an act in which according to
the circumstances the victim would reasonably expect privacy and where the
victim's body such as genitals, posterior or breasts are exposed and the victim
is naked or only in her underwear; or the victim using a lavatory, or bathing;
or a sexual act which is not being carried in public.
This Section by virtue of explanation 2 also covers dissemination of the photos
of which the victim consented to be recorded but not consented for the
Punishment for voyeurism
Section provides different punishment for first conviction and second
conviction. Punishment for repeat offenders is more severe because they have
already been prosecuted once and didn't change themselves as they were supposed
to do after imprisonment, therefore, a strict punishment is required to deter
them from doing it again and again.
Imprisonment of either description ( simple or rigorous) not less than one year
but could extend upto three years along with fine for first conviction whereas
for second conviction, imprisonment of either description which will vary from
three to seven years combined with fine.
Offence of voyeurism
Offence of voyeurism is cognizable, triable by any magistrate. For first
conviction, it is Bailable but for subsequent conviction it turns into
Stalking is explained under Section 354D. Stalking is a crime of following a
woman or contacting or trying to contact that woman for personal interaction
even after clear indication of discomfort from that woman.This crime also
includes if a man is monitoring the use of the internet of the woman, her email
and any form of electrical communication.
However the Section further provides some circumstances where a man could be
exempted from the crime, for instance:
Punishment for Stalking
- If the accused had been entrusted with the responsibility of detection and
prevention of crime by the State
- If he was pursuing under any law or to comply with any requirement or condition
imposed by any person under any law
Punishment prescribed for first conviction is imprisonment of either description
up to three years along with fine and punishment for subsequent conviction is
imprisonment up to five years along with fine.
Offence of Stalking
Offence of stalking is cognizable, triable by any magistrate. For first
conviction, it is Bailable but for subsequent conviction it becomes a
Do laws related to sexual harassment need to be gender neutral
Earlier women used to be confined in their household chores but with change in
time, now they are holding positions in every sector. This advancement needs to
be encouraged and protected by various laws. With all these advancements, men
and women are on equal footing therefore laws should also be applied equally.
The present laws of sexual offences protect the woman, which is acceptable as
they need to be protected against the dominance of others. But howso, males are
not protected by the same laws. Males are also subjected to sexual harassment by
both males and females. The present laws are flawed on the ground that they do
not provide the same ground to the men.
Moreover, present laws do not provide for the prosecution of women. It seems
that lawmakers never thought of a woman harassing a man or even a woman for that
Difference Between Sexual Harrasment And Rape
Rape is a heinous crime defined and explained in Section 375. There are
different classes of rape like gang rape, rape with a minor, etc. one thing
which is common in rape and outraging modesty of woman is that criminal force is
used to outrage the modesty of woman. In other words, Rape is a bigger crime
under which the modesty is outraged of the victim but there must be clear
intention of the accused to penetrate the victim. This intention to penetrate is
absent in outraging the modesty of women and marks a clear distinction.
Some instances which could be covered under laws related to sexual offences:
Frotteurism is a condition in which a person is sexually aroused by touching or
rubbing one's genitals against another person without their consent. Although
this condition is not much talked about, it is shockingly common at public
places. This could be happening in a crowded bus or in a line to get your
railway tickets or at food stalls in marriage halls, even at religious places.
This act is covered under Section 290 of IPC, but this will also fulfill the
essentials of outraging the modesty of women.
Exhibitionism is a term which is used when a person displays one's genitals for
sexual gratification. It is a very inappropriate behaviour if done outside the
context of intimate sexual relations. This may feel good from the perspective of
the person doing it but the victim will feel disgusted and violated. This act is
covered under Section 294 of IPC.
Every woman possesses modesty capable of being outraged whether young or old, a
newborn or a bed ridden old woman, even if the woman is not capable of reacting
or even knowing of her modesty. This modesty is an attribute to her being a
female and they have a right to protect it.
Sexual offences were introduced to protect the women by imposing harsh
punishment to the offender but number of these cases in India is alarming. It is
also of great concern that laws which are made for the protection of women are
sometimes exploited by women for taking money from the accused or to satisfy
their ego. Also, there is no punishment if a woman harasses another woman.
need to be gender neutral so that the misuse can be stopped and true equality
can be achieved. Also, a law may be very well written but it will mean nothing
when implemented poorly. Government needs to make some changes, so that more
women come forward to report these offenses which will help in better
implementation of these laws.