SEXUAL HEALTH AND HUMAN RIGHTS A legal and ... - The ICHRP

consensual sexual activity with young persons. These provisions are also used to address
sexual harassment against adult women. 510
Rupan Deol Bajaj and another v. KPS Gill and another 511 considered a situation where a
woman was slapped on her rear by a man in a public social setting after he had repeatedly
attempted to intimidate her through physical proximity and overtures. In this case the woman
filed a police complaint under Sections 354 and 509 of the Indian Penal Code, relating to the
‘modesty’ of women. Section 354 penalises any person who assaults or uses criminal force to
any woman with the intention or knowledge that it will outrage her modesty. Section 509
penalises any person who uses language, gestures or objects with the intention of insulting a
woman’s modesty by such use. The court examined dictionary definitions and judicial
precedents to come to an understanding of ‘modesty’. It concluded that “the ultimate test for
ascertaining whether modesty has been outraged is the action of the offender such as could
be perceived by one which is capable of shocking the sense of decency of a woman.” 512 The
respondent attempted to use the defence provided by Section 95 of the Penal Code, which
provides that an act is not an offence if it causes harm so slight that it would be considered
trivial by an ordinary person. The court cited precedent in determining that the ‘harm’ caused
would include mental injury and its triviality would depend on the nature of the injury, the
position of the parties and the intent or knowledge behind the action but not merely on the
measure of physical or other injury caused.
Although the word ‘modesty’ is not defined in the Indian Penal Code, in this case the
Supreme Court emphasized that the ultimate test for ascertaining whether modesty has been
outraged is if the action of the offender is such as could be perceived as capable of shocking
the decency of a woman.
To fill in the lacunae in the law, in 2000 the Law Commission of India suggested replacing
the offence of rape under Section 375 with a new offence of graded sexual assault. The new
definition of sexual assault would include not only penile penetration but also penetration by
any other part of the body (like finger and toe) or by any other object 513 . Additionally, this
report recommends the inclusion of a new section to penalize ‘unlawful sexual contact’ and
to cover a wide variety of offences including sexual harassment at the workplace.
This lacuna was brought to the notice of the Supreme Court of India in Sakshi v. Union of
India & others 514 wherein the petitioners had sought a declaration from the court that apart
from penile-vaginal penetration ‘sexual intercourse’ as contained in Section 375 should be
read to include all other forms of penetration such as penile-oral, penile-anal, digit-vaginal,
digit-anal and object-vaginal, object-anal. The court held that prosecution of an accused
under Section 375 on a radically enlarged meaning of it would violate the guarantee
enshrined in Article 20(1) of the Indian Constitution - that no person shall be convicted of
any offence except for violation of a law in force at the time of the commission of the act
510 For a discussion of the use of these provisions in addressing sexual harassment against women see Chapter 1
on Non-Discrimination
511 1995 (6) SCC 194
512 Ibid.
513 The Law Commission of India Report (No. 172 of 2000), p. 19. The recommendation of the Law
Commission Report was supplemented by the report of the Justice Malimath Committee on Reform of the
Criminal Justice System (Volume 1, March 2003) that recommended that “other forms of forcible penetration
including penile/oral, penile/anal, object or finger/ vaginal and object or finger/anal be made a separate offence
prescribing punishment broadly on the lines of Section 376 of the Indian Penal Code.”
514 AIR 2004 SC 3566
115