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This is why we get a bewildering variety of verdicts which rely not on true jurisprudence but the arbitrary interpretation of the individual judge.
Where one can decry sex before marriage as immoral, the other can deem a hand on the shoulder as potentially sexual.
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"Even if you keep your hand on the shoulder of a woman, it is for the lady to comment on the nature of the touch, whether it was friendly, brotherly or fatherly," said Bombay High Court Justice Naresh Patil, ruling against Machindra Chate's appeal urging the court to squash an FIR filed under Section 354 of the Indian Penal Code.
This kind of "enlightenment"—which violates the intent of the original law—does women no favours.
It is precisely this kind of misuse of Section 354—both by the police who booked Chate under 354 when they had many other options and the court that has foolishly upheld the decision -- that aids and abets the many misogynists who resist strengthening sexual violence laws in this country.
Its definition: "The essence of a woman's modesty is her sex." The result of the labour of the Bench comprising justices Arijit Pasayat and SH Kapadia will help fill a glaring void in the Indian Penal Code, 1860, but the scope of the definition of 'modesty' as mentioned in Section 354 appears to go far beyond what framers of the code possibly had in mind."The act of pulling a woman, removing her saree, coupled with a request for sexual intercourse...would be an outrage to the modesty of a woman; and knowledge, that modesty is likely to be outraged, is sufficient to constitute the offence," the Bench said in a judgement that has drawn from several verdicts by different courts.
Cases like Chate will allow much the same to happen to Section 354, especially its revised subsections which allow a broader interpretation of sexual offenses.
But as this case shows, the blame lies not with women per se—many of whom are real victims of sexual and domestic violence, and whom the law often fails to protect—but with the authorities who deploy the Indian Penal Code at their personal whim.
One set of High Court judges can overthrow Section 377 while another pair at the Supreme Court can reinstitute it with equal ease.
The result is a judicial system that fails to protect the spirit and intent of the laws it is entrusted to uphold.