MODULE 4[A]: CRITICAL

ANALYSIS OF IPC PROVISIONS

SAFEGUARDING WOMEN

A CRITICAL VIEW TOWARDS PROVISIONS OF IPC

The Indian Penal Code (IPC) has various provisions which safeguard women, most of these
provisions are part of chapter 16 which includes the offences affecting the human body. This
article highlights these provisions in five parts. The first part includes the gravest yet one of
the most used provisions of the IPC: section 375. Sections 375 and 376 define and set out the
punishment for rapes. According to the National Crime Reports Bureau (NCRB), a woman is
raped every 15 minutes in this country. This is an alarming number and the more concerning
statistic is that in an alarming 94 % of these rapes, the accused is known to the victim. The
provisions relating to rape have recently amended with the help of the Criminal Law
Amendment Act (CLAA), 2013 which was conceptualised in the wake of the protests against
the Nirbhaya case. These amendments were in accordance with the 123 rd Law Commission
Report (LCR). The LCR suggested widening the ambit of rape to include other forms of
penetration and penetration by objects and not just the male sexual organ. This Amendment
Act was commendable and helped in acknowledgement of a lot of offences which did not
amount to rape under the previous laws. But the Amendment fails to criminalize Marital rape
which is reflective of how the legislature has not changed its patriarchal perspective. The IPC
and hence the provisions for rape were passed in the mid- 19th century and had a patriarchal
perspective on violence against women. Failure to acknowledge marital rape reflects the idea
that a woman is a man’s property and hence, a husband cannot violate his wife.

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The second part of the IPC which safeguards women includes section 354 and section 509
which criminalize sexual assault and eve-teasing. Although these sections seem to solve
problems relating to gender-based misconduct and torture, the wording of these sections does
not quite achieve the goals set out by the provision. Outraging a women’s modesty is an
essential ingredient in prosecuting someone for section 354. The word modesty has not been
defined in the code and supreme court judgements have vaguely defined modesty’s essence
to be sex. The lack of clarity of the word creates a negative apprehension in the minds of
anyone who reads it. Historically, modesty as a term has been used to describe the chastity of
woman and had ornamental value, implying that a woman shall treat her chastity as honour
which when violated brings upon shame on a community. This stereotype is reinforced by the
section not being gender-neutral, which hints at the fact that modesty is unique to females.
The stigma relating to the word ‘modesty’ and the negative reactions to the same prevent the
victim from resorting to legal recourse. The wording of the section should be changed to
make the section’s essence devoid of any patriarchal remnants. On the other hand, the
sections 354A, 354B, 354C and 354D which introduce definitions and punishment for sexual
harassment, Voyeurism and Stalking respectively are commendable and give a unique status
to different kinds of crimes against women.

The third part of the IPC which safeguards women found place recently post the CLAA,
2013. This part includes the provisions 326A and 326B which criminalize to acid attacks. The
provisions were badly implemented as the cases rose exponentially even post the amendment
was passed. According to the NCRB, the country witnessed nearly 230 acid attack cases in
2018 which is a steep rise from 122 cases a year before passing the amendment. The major
problem is that there is no provision in the IPC or any central law which expressly prohibits
and penalizes sale of acids. Although the Supreme Court directed all states to make a law to
achieve the same, the state laws have been under implemented or improperly drafted. This
has led to negligible deterrent effect which is detrimental to the society because acid attacks
are fatal and have a lasting impact on the physical appearance of the victim which seriously
hampers the health and social life of the victim.

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The fourth part of the IPC which safeguards women consists of sections 498, 498A and 304B
which concern married women. The abovementioned sections criminalize detainment of a
married woman, cruelty committed by husband or his relatives and dowry deaths
respectively. Sections 498A and 304B were introduced in the wake of increasing cases of
violence in pursuit of dowry. Dowry is a patriarchal tradition which reduces the female’s
status to mere property. The major problem which has been discussed at length and raised in
the report of the Maalimath Committee is that a high number of the cases under 498A are
labelled false as the complainant eventually withdraws the complaint. This interpretation
leads to the problematic deduction that a lot of females misuse this provision and it is
reinforced by the debate which criticizes the provision for having a victim-centric approach
post the amendments made in the Indian Evidence Act. The burden of proof in cases relating
to 498A shifts to the accused which is in contravention with one of the basic legal principles:
“Accused is innocent until proven guilty”. The suggestion given by various committees is to
make the offence compoundable. The law was made to strike down the patriarchy in the
provisions of the IPC but the society is still broadly patriarchal. The harsh truth is that most
women are not welcome in their maiden homes and they have to eventually compromise and
get back with their husbands in the case of marital violence. This leads to a large number of
withdrawals of the complaints lodged under 498A. The Maalimath committee and the 243rd
law commission report suggested that the offence should be made compoundable which
would allow settlements and would reduce the hostility of the women and reduce the number
of complaint withdrawals. The amendment to make the offence compoundable is just one of
the many shortcomings of the provisions. The provisions address some of the issues faced by
married women and need to undergo various improvements in the future.

The last part of the IPC which safeguards women includes provisions 370-373 of the IPC
which deal with trafficking, bonded labour and usage of underage girls for prostitution. The
abovementioned sections of the IPC are to be read with the numerous legislations that have
been made to achieve the same motive and discussing these provisions in isolation would be
problematic. These bills include the Immoral Traffic (Prevention) Act (ITPA), 1956 and the
Juvenile Justice Act, 2015. A major problem of most of the abovementioned bills is that they
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are mostly redundant and fail to address a lot of pressing concerns. The politics behind these
bills ensure that the status of the sex workers is not alleviated. The sections of the IPC are
comprehensive and include both bonded labour and sex workers and the legislations do
nothing more than adding bureaucracy to the already lengthy prosecution. There is nothing in
these legislations to save the victims from being tried under other punitive provisions for
crimes which were outside their control like travelling without a passport. These are the only
sections discussed in this article which are gender-neutral but most of the victims of
prostitution in India are women and sections 370, 372 and 373 are the only sections in the
IPC which safeguard women and underage girls who are trafficked for the purpose of
prostitution.

The CLAA and the recent amendments in the rape laws, domestic violence provisions, the
dowry death provisions, acid attack provisions and the adultery provisions indicate that the
government and the judiciary are trying to transform the law to address concerns raised by
feminist organisations. But, the part progressive approach towards the change is reflected in
the various ironies that persist in criminal law. A prime example of the same is the failure to
acknowledge marital rape which is faced by one out of three married women in India. On the
contrary, the government has acknowledged violence committed by husband and his relatives
in pursuit of dowry. The difficulty of proving various crimes against women and the under
the implementation of various legislations has resulted in negligible deterrence. India is still
regarded as a centre for crimes against women and the crimes are still rising exponentially.
The real problem is the mindset of the society which is still filled with patriarchy and
misogyny. The nation would be a safer place for women only after the people change their
perspective towards women, respect them and give them the freedom to live their lives as
they seem fit.

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