Section 509 of the Indian Penal Code (IPC) is a bailable offence defined as:

“Word, gesture or act intended to insult the modesty of a woman.—

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, 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 one year, or with fine, or with both.”

How was Section 509 being used earlier?

Though Section 354 IPC (Criminal force to woman with intent to outrage her modesty) prescribes the punishment for outraging the modesty of a woman by an act of assault or use of criminal force; the legislature has incorporated Section 509 IPC, making punishable even a verbal attack of insulting the modesty of a woman.

1. In the case of Emperor vs. Tarak Das Gupta (1925), the accused sent a letter to an unmarried nurse, with whom he had no previous acquaintance. The letter contained indecent overtures. The accused was held liable for outraging the modesty of a woman by exhibiting the object. The Court held that it was not necessary that the offender themselves should exhibit the object. An agent, such as the post office, can also be employed for fulfilling this purpose.
2. In the case of State of Punjab vs. Major Singh (1966), the offender indulged into an act of unnatural lust. He ruptured the hymen and caused a ¾” tear inside the vagina of a seven and a half months old female child. The Supreme Court, in this case, held that the act of outraging the modesty of a woman was not restricted by the age of the victim. It was also not dependent on the fact that whether the victim knew or was conscious about the acts being performed on her. They held that the accused had committed the offence of outraging the modesty of a woman. Justice Bachawat held that the essence of a woman’s modesty is her sex, which a female of tender age also possesses. The crux of the issue is the culpable intention of the offender. Justice Mudholkar stated that the reaction of the woman is not the sole criteria to see whether an act amounts to outraging the modesty of a woman.
3. These aforementioned views were reiterated in the case of Mrs Rupan Deol Bajaj & Anr. vs. Kanwar Pal Singh Gill & Anr. (1995). In this case, the complainant held the position of a senior IAS officer of the Punjab Government. It was alleged that, in a party hosted at a colleague’s house, the accused herein, who held the post of the Director-General of Police, Punjab slapped her posterior and behaved indecently with her in front of the gathering. The Apex Court held that the ultimate test for ascertaining if the modesty has been outraged is that – if the actions of the offender could be perceived as such which are capable of shocking the sense of decency of a woman. The Court held the accused guilty of the offence. This case was the first of its kind to give a wide interpretation to the word “modesty” at a time when we neither had any law dealing with sexual harassment at workplace nor the Vishakha Guidelines were passed by the Supreme Court.

Until the enactment of Sexual Harassment of Women at Workplace (Prevention Prohibition and Redressal) Act & Rules, 2013 (POSH Law); Section 354 and 509 of IPC were invoked to address workplace sexual harassment of women as well. There was no specific law.

Today, the POSH Act is in place. Many resort to that. Hence, has Section 509 of the IPC lost its meaning?

In this regard some key differences between POSH Act & IPC must be noted. POSH Act deals with sexual harassment at the workplace only. The provisions of IPC are not limited and can be invoked to punish harassment done anywhere. Similarly, while POSH Act gives the option of seeking civil remedies and damages. The provisions of IPC makes it possible for an individual to file a criminal complaint which entails jail term as punishment.

State of Tamil Nadu v. Suhas Katti (2004), the accused was a family friend of the victim and wanted to marry her but she married another man which resulted in a Divorce. After her divorce, the accused persuaded her again and on her reluctance to marry him, he took the course of harassment through the Internet. The accused opened a false e-mail account in the name of the victim and posted defamatory, obscene, and annoying information about the victim. A charge-sheet was filed against the accused person under Section 67 (Punishment for publishing or transmitting obscene material in electronic form) of the IT Act and Section 469 (Forgery for purpose of harming reputation) and 509 of the Indian Penal Code, 1860.

The Additional Chief Metropolitan Magistrate convicted the accused person and subjected him to Rigorous Imprisonment of 2 years along with a fine of Rs. 500 under Section 469 of the IPC, Simple Imprisonment of 1 year along with a fine of Rs. 500 under Section 509 of the IPC, and Rigorous Imprisonment of 2 years along with a fine of Rs. 4,000 under Section 67 of the IT Act. The instant case is a landmark case in the Cyber Law regime for its efficient handling made the conviction possible within 7 months from the date of filing the FIR.

In current times, when the world has gone digital, is Section 509 still relevant? 

In a 2020 case, Abhijeet J.K. v. State of Kerala, the De facto complainant while proceeding to her house was approached by a motorcyclist who invited her to accompany him on his bike and further made sexual gesture to her with his hand. Case was registered against the Petitioner for an offence punishable under Section 509 of IPC. The Petitioner approached the High Court to quash the FIR. It was argued by the counsel of the petitioner that the acts allegedly committed by petitioner are trivial in nature and do not attract the offence punishable under Section 509 IPC.

The Kerala High Court observed that the petitioner and the victim were not previously acquainted with each other. Therefore it cannot be found that the intention of the petitioner was to give the victim a lift or free ride on the motorcycle, on account of friendship or relationship with her. Acts allegedly committed by the petitioner amount to an affront to her feminine decency. Invitation made to the victim contained an insinuation that she was a woman of easy virtue who was ready and willing to go with any man during night. The Court remarked that an “Act of affront to the decency and dignity of a woman cannot be considered as trivial in nature.”

The recent infamous Bois Locker Room incident, amidst a nationwide lockdown, demonstrated how screenshots from a group created by adolescent boys on Instagram by the name of Bois Locker Room were leaked. Based on the screenshots, it appeared that these adolescent boys were sharing morphed pictures of minor girls, objectifying them and passing derogatory remarks. The Cyber Crime Cell of the Delhi Police has registered an FIR against the boys under sections 465, 469, 471 and 509 IPC along with section 67 and 67A of the IT Act.

CONCLUSION

These incidents and judgments show that Section 509 of IPC is still a relevant provision – however simple it may seem to appear.

In the post- pandemic era, provisions of IPC are complemented with IT act to bring justice to an individual and give appropriate punishment to the perpetrator. Recent times have witnessed an overlap between the legal provisions of the Indian Penal Code and the Information Technology Act concerning cybercrimes. However, the ambit of section 509 is complementary to any or every law that intends to penalize an offence outraging the dignity of a woman whether through physical or virtual mode.

– Vaishali Jain, Advocate & Associate