Girdhar Gopal vs State,1953
The question came for decision before Madhya Pradesh High Court in the case of ‘Girdhar Gopal v. State (1952)’.
Article 354 Provides that,
354. Assault or criminal force to woman with intent to outrage her modesty.—
“Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”
In the case, the counsel’s contention was that Section 354, Penal Code offended against the provisions of Articles 14 and 15 of the Constitution of India and that therefore, Section 354 being void, the conviction of the applicant under that section was illegal.
The argument was that as the Penal Code does not make the act of assault or use of criminal force to any man with intent “to outrage his modesty” an offence, Section 354, Penal Code contravenes Article 14 of the Constitution and that in enacting Section 354, Penal Code, the legislature has discriminated in favour of women only on the ground of sex and that therefore, Section 354 offends against Article 15(1).
The Court’s Analysis
The Court analysed the case as follows-
- “In my view this argument is unsound and must be rejected. The offence under Section 354 is committed only when a person assaults or uses a criminal force to a woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty. It is not the act of outraging the modesty that is made an offence under this section.
- In order to constitute an offence under Section 354, Penal Code there must be an assault or use a criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged. The offence under Section 354, Penal Code can be committed by any man or a woman with the necessary intent or knowledge.
- For, a woman can assault or use criminal force to any other woman as equally and effectively as any man; and the intention or knowledge that the modesty of the woman assaulted or against whom criminal force has been used will be outraged, is not of a kind which a woman on account of inherent differences from man is incapable of having.
- The pronoun “he” used in the expression “that he will thereby outrage her modesty” must therefore be taken under Section 8, Penal Code as importing a male or a female. It is thus clear that under Section 354, Penal Code a man as well as a woman can be held guilty of the offence of assaulting or using criminal force to any woman with the intention or knowledge that the woman’s modesty will be outraged, and be punished for the offence.
- Section 354, therefore, operates equally upon all persons whether males or females and it cannot be maintained that as women are exempt from any punishment under this section, it offends against the provisions of Article 14 of the Constitution.
- It is true that the act of assault or use of criminal force to any man with the intention or knowledge of “outraging his modesty” is not made an offence under the Penal Code. It would however, appear from Section 353 that an assault or use of criminal force to any man by a woman intending thereby to dishonour him otherwise than on grave provocation is punishable.
- Be that as it may the objection of the learned Counsel for the applicant that the Penal Code gives no protection to man against assault or criminal force with intent to “outrage his modesty” is really an objection as to the policy of law in not creating a particular offence. It is not an objection as to the infringement of Article 14 of the Constitution.
- This Article provides that the State shall not deny to any person equality before the law or the equal protection of laws within the territories of India. It means that every law that the State makes shall operate alike upon all persons, and property under the same conditions and circumstances. It does not mean that all persons, property or occupation must be treated alike by the State. While Article 14 forbids class legislation it does not forbid reasonable classification for the purposes of legislation.
- In order, however, to pass the test of permissible classification, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (2) that that differentia must have a rational relation to the object sought to be achieved by the Act.
- What is necessary is that there must be a nexus between the basis of classification and the object of the Act. 14. From these observations it is clear that a reasonable classification of groups for purposes of legislation is permissible and what is prohibited is discrimination between persons who are included in the group to which the law applies.
- If, therefore, the Legislature has in its wisdom thought it fit to treat men differently from women in regard to modesty and to make an assault or use of criminal force with intent to outrage the modesty punishable under Section 354 when committed only with respect to women, the provisions contained in Section 354, Penal Code cannot be condemned as repugnant to Article 14 of the Constitution.
- The contention that Section 354 violates the provisions of Article 15(1) of the Constitution is equally untenable. This Article says that the State shall not discriminate on grounds only of religion, race, caste, sex, and place of birth or any of them. The word “only” is important and deserves to be noted. It emphasises the fact that the discrimination that is prohibited under Article 15(1) is a discrimination based on the ground of sex, or race, etc. alone.
- If the discrimination is based not merely on any of the grounds stated in Article 15(1) but also on considerations of propriety, public morals, decency, decorum and rectitude, the legislation containing such discrimination would not be hit by the provisions of Article 15(1).
- It cannot be denied that an assault or criminal force to a woman with intent to outrage her modesty is made punishable under Section 354 not merely because women are women, but because of the factors enumerated above. Our country is not peculiar in making the acts described in Section 354 punishable as an offence. Such acts constitute a penal offence in all other civilised countries.
- After all civilisation depends on morality. In any country claiming or aspiring to be a civilised country morality and all the incidents of morality are as essential as justice to the citizen and personal liberty. No civilised country whose action is directed towards securing “the greatest good of the greatest number” can allow assaults or criminal force to women with intent to outrage their modesty to go unpunished and permit the position of women to be injuriously affected by chartered libertines.”
Girdhar Gopal vs State: 1953 CriLJ 964