New Delhi: Insulting a woman or being rude to her and not behaving in a chivalrous manner will not amount to outraging the modesty of a woman, the Delhi High Court held on Tuesday while setting aside an order putting a man on trial for calling a woman ‘gandi aurat‘.
The high court also said gender-specific laws are not meant to be “anti-opposite gender” but to serve the purpose of addressing unique issues faced by a particular gender. It said the fact that a piece of legislation is gender-specific should not be misconstrued to mean that the role of a judge also changes from being neutral to tilting towards a particular gender, and irrespective of the gender-specific nature of a law, the judicial duty fundamentally requires unwavering neutrality and impartiality.
“Gender-specific legislation exists to address the unique concerns and challenges faced by particular genders within society. However, this does not imply that the judge is to be influenced or swayed by gender-related factors when administering justice unless specific presumptions are legislated in favour of a particular gender in law. In essence, judicial neutrality is an indispensable cornerstone of the legal system, ensuring that all parties, regardless of gender, are treated fairly and equitably,” Justice Swarana Kanta Sharma said, according to a PTI report.
The high court made the observations while setting aside a trial court’s order framing a charge under section 509 (word, gesture or act intended to insult the modesty of a woman) of the IPC, saying a prima facie case was made out against the man. The prosecution’s case was that the complainant woman and the accused were working in the same organisation and the man was her senior. It was alleged that he used foul language against the woman when she refused to give him Rs 1,000 and called her ‘gandi aurat‘ (dirty woman).
The high court said the word ‘gandi aurat‘, if read in isolation, without context, without any preceding or succeeding words indicating intent to outrage the modesty of a woman, will not bring these words within the ambit of Section 509 IPC.
“Had there been any mention of any other words used, context given or any other gesture etc. made accompanying, succeeding or preceding these words, reflecting criminal intent to outrage the modesty of a woman, the outcome of the case would have been different,” it said, the report added.
The high court said in India, the criminal justice system is adversarial in nature, however, it cannot be seen as adversarial between men and women per se.
“Instead, it should solely revolve around two individuals: one being the complainant and the other being the accused irrespective of the gender, however, at the same time, while adjudicating the cases firmly remembering and appreciating the social context and situation of a particular gender who may be in a lesser advantageous situation than the other,” it said.
After examining the act attributed to the man, the high court said it becomes evident that he lacked the requisite intention or knowledge to conclude that the alleged use of the term ‘gandi aurat‘ would meet the criteria for outraging the modesty of a woman by the reasonable person’s standard.
“Insulting a woman or being rude to her and not behaving with her as she would have expected you to behave in a chivalrous manner will not be covered under the definition of outraging the modesty of a woman, depending on facts and circumstances of each case,” Justice Sharma said.
The court said there is no evidence of any behaviour on the part of the man indicating that he persisted in any unwanted social conduct, but it is at best a case of vexatious comments which may reasonably be taken as unwelcome by the complainant. “The language used is not profane or vulgar or sexually coloured but may hinge on harsh, derogatory language,” it said.
The court said, “The mere fact that legislation is designed to address specific gender-related concerns should not be misconstrued as being inherently biased against the opposite gender or being anti-men wherever applicable.” It said section 509 of IPC does not inherently introduce a presumption in favour of women and it is for the courts to apply the principles of charge and discharge objectively, without being unduly influenced by the fact that this section is gender specific, however, without forgetting the intent behind its enactment.
“The court should approach cases under Section 509 IPC with a neutral and impartial stance, treating and testing them in accordance with long established criminal legal principles of law and procedure. Every court of law has to uphold the principles of justice, fairness, and objectivity in its proceedings, regardless of the gender-specific nature of the law in question,” it added.
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