In a recent ruling of Shrikrushna v. State of Maharashtra, the Nagpur Bench of the Bombay High Court held that throwing a chit of paper at a married woman professing love for her amounts to outraging her modesty under Sections 354 and 509 of the Indian Penal Code. 

While passing the order, the court said that “the modesty of a woman is her most precious jewel” highlighting the lingering patriarchy & cultural hangover of our society. 

This remark was passed while the court was hearing a case dated back to October 3, 2011, when the petitioner, identified as Akola resident Shrikrushna Tiwari, had thrown a chit of paper at the woman after she refused to take it. The following day, the man made objectionable gestures, and warned her not to reveal the contents of the paper he had thrown at her.

After the incident, the woman registered a complaint against the man in a sessions court. The accused man was charged under sections 354 (assault or criminal force to woman with intent to outrage her modesty), 509 (word, gesture or act intended to insult the modesty of a woman), and 506 (punishment for criminal intimidation) of the Indian Penal Code. 

Such judgements reinforce essentialist assumptions of gender, culture, agency and victimhood and does not reflect feminist politics of justice. 

Though the judgement imposes a fine on the petitioner, it is well-intended and in the favour of the woman, however, any enforcement of women’s modesty is proof of the failure of that culture. It only reinforces essentialist assumptions of gender, culture, agency and victimhood and does not reflect feminist politics of justice. 

This article is an attempt to initiate a discussion on the need for a feminist discourse in Indian Judicial system. It is an undeniable truth that the reprenstion of the world and legal framework, is the work of men and they describe it from their own point of view and which is far from the absolute truth.

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Also read: Bombay High Court Likening ‘Woman’s Modesty’ To ‘A Precious Jewel’ Serves No Good

Acknowledging that judges bring their backgrounds and experiences with them to their decision making and the language can contain covert sexism, often cultural hangovers from a time when patriacrchy was more powerful or less challenged than it is now. 

The dilemma at hand is fairly baffling. Language does change our worldview and influence our behaviour. The need of the hour is to make space for alternative voices without compromising judicial impartiality and independence. 

Within that space, feminist approaches can change the way that facts are perceived and understood, not only in the current case, but for future cases. Where the law allows discretion, judges applying feminist methods or persuaded by feminist perspectives may exercise it in different ways and work in the favour of a more substantive conception of equality would look like in practice. 

Concepts such as ‘modesty’ are used to keep women in their patriarchy-ordained roles—compromising their progress in the male-dominated realms of professional achievement, and locked into a passive role when it comes to sexual desire.

Modesty as a concept is deeply entwined with power. It is clearly a gendered notion. The word means both self-effacing and sexually chaste, neither of which is inherently virtuous, and both of which are applied to women more than men. These concepts are used to keep women in their patriarchy-ordained roles—compromising their progress in the male-dominated realms of professional achievement, and locked into a passive role when it comes to sexual desire. The trouble is though we have recognised the issue we are still defining it from a male perspective. Even though unintended it promotes the ideas of regulating women’s behaviour instead of upholding women’s rights. 

What we see here with the words “modesty is woman’s most precious jewel” that it needs to be protected. And when the woman is seen to have lost this “precious jewel” to the harasser, it reinforces the idea that women who are abused are stripped of their dignity, hence, bringing back the onus on women. 

Also read: Criminalising Marital Rape: The Pandemic Has Women Locked Down With Their Abusers

As it women victims of violence experience various difficulties and barriers in accessing justice owing to socio-cultural & economic factors, such language only dilutes the experiences of woman. 

There is still a widespread usage of patriarchal vocabulary in India and to combat it we must use feminist approaches in legal writng and delivering judgements.


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About the author(s)

Vanita Bhatnagar is a lawyer and independent legal research professional. She writes extensively on building inclusive workplaces, gender issues, social inequalities, and public policy. A graduate from Symbiosis Law School, she has written for publications like Live Law, The Logical Indian, The Better India, and The WittyFeed.

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