Legal Battle Sheds Light on Gender-Specific Offenses in Indian Criminal Law
The ongoing legal proceedings involving Newslaundry journalists and Abhijit Iyer-Mitra have garnered significant public interest due to the nature of the allegations and the complex legal maneuvers involved. The initial directive by a magistrate to file a First Information Report (FIR) set the case in motion, which subsequently traveled through the sessions court and the Delhi High Court. Recently, the sessions court interpreted the social media posts in question as forms of poetic expression, known as shaayari, rather than targeted remarks against any individual woman.
Exploring Sections 75 and 79 of the Bharatiya Nyaya Sanhita, 2023
Beyond the immediate details, the case highlights two critical provisions within the Bharatiya Nyaya Sanhita (BNS), 2023: Section 75, which addresses sexual harassment, and Section 79, concerning acts intended to insult the “modesty of a woman.” These sections reflect varying legal perspectives on gender-specific harm.
Section 75 explicitly defines sexual harassment as an act perpetrated by men against women, thus framing the offense in gender-specific terms at both the victim and perpetrator levels. In contrast, Section 79 targets actions that insult a woman’s modesty, applying to any individual, regardless of gender, who commits such acts. The requirement for intent, or mens rea, is a distinctive feature of Section 79, unlike Section 75, which focuses on the act itself.
Gender Assumptions in the Context of Evolving Jurisprudence
Section 75’s gender specificity becomes intriguing against the backdrop of the landmark NALSA v Union of India (2014) case, which recognized transgender rights and gender self-determination. This judgment introduced a nuanced understanding of gender beyond traditional binaries. Yet, Section 75’s binary categorization of “man” and “woman” as stable categories for defining perpetrators and victims may seem outdated in an evolving legal environment that increasingly challenges these definitions.
The presence of an openly gay man as the accused in the current case underscores these assumptions, particularly the conventional belief that sexual harassment involves male perpetrators and female victims. This case provides a critical opportunity to reassess the gender-based categories underlying these criminal offenses.
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Reconsidering Protection Beyond Gender-Specific Boundaries
The litigation prompts a broader examination of legal protections against sexual harassment. Historically, such laws emerged to counteract pervasive harassment against women, a context that remains relevant due to the ongoing structural inequalities women face. However, there is growing recognition that sexual harassment also affects gay men, transgender individuals, and gender-non-conforming people, who often endure abuse rooted in societal norms around masculinity and femininity.
While the Transgender Persons (Protection of Rights) Act, 2019 offers some protection against sexual abuse, it operates outside the BNS framework, with lesser penalties and limited scope. This raises essential questions about whether core criminal law, like Section 75, should broaden its definition of victimhood beyond women alone.
The Role of Modesty in Modern Criminal Law
Section 79, which focuses on a woman’s “modesty,” invites scrutiny regarding the language used in legal contexts. This concept, inherited from colonial-era laws, persists in modern Indian criminal law, raising questions about its relevance. The term “modesty” may reflect outdated gendered virtues, whereas “dignity” aligns more closely with constitutional values of rights and equality.
Implications for Future Legal Frameworks
As the courts deliberate on this case, they will ultimately determine the merits of the allegations. Regardless of the outcome, the case has illuminated underlying gender assumptions in criminal law, particularly in the restricted application of sexual harassment protections to women in Section 75 and the reliance on the notion of a woman’s “modesty” in Section 79.
This suggests a need to reconsider whether the language of “modesty” should be replaced with “dignity” and whether the gender-specific framework of Section 75 should evolve to extend protections to a broader range of victims.
Sumit Baudh is a Professor of Law at OP Jindal Global University and the author of the forthcoming book, Law at the Intersection of Caste, Class and Sex (Routledge).
