Sharafat A. Chaudhry, Rabia Mustafa

‘Modesty’ as defined by the Oxford Learner’s Dictionaries is ‘the fact of not talking much about your abilities or possessions’. Also, it is defined as ‘the action of behaving or dressing so that you do not show your body or attract sexual attention’. The term ‘modesty’ lacks a socially accepted definition because its meaning is ambiguous and relative. History has demonstrated that religions have a considerable influence on morality norms and that modesty is largely determined by appropriate behavior and clothes. Orthodox Judaism law stipulates that women must dress in knee-length skirts and blouses with sleeves that reach past the elbow and cover the collarbone. Women who are married are expected to cover their hair.

In Islamic beliefs, modesty is discussed from various perspectives. Physical modesty is associated with the ‘awra’, an Arabic phrase that refers to a person’s private body parts and means inviolate vulnerability or ‘what must be covered’. Marriage is also considered as an act of modesty because this act is taken as the protection of modesty. Modesty is also related to ‘Haya’ which is an important part of faith. Modesty is so central to Islam that the Prophet (PBUH) said, ‘every deen [way of life] has an innate character. The character of Islam is modesty.’ (Al-Muwatta 47.9).

Regarding the modesty of women in Islam, a Muslim woman is obligated to cover every part of her body, except for her face and hand, which some women choose to cover or are asked to cover. For them, being modest involves avoiding revealing the contour of the body by wearing loose clothing or clothing made of sheer material.

Violation of the modesty of women had been considered a crime punishable under the Penal Code even during the British Raj. The word modesty should not be understood in terms of a specific victim of an act, but rather as a characteristic of feminine society. Under the Pakistan Penal Code, 1860 (“PPC”), it is a quality that is associated with women because of their sex. The Section 354 of PPC regarding assault or criminal force to woman with intent to outrage her modesty’ states that:

“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.”

However, in 1984 an occurrence of a violation of women’s modesty- gruesome in nature, heinous in its intensity, and socking to public morality, jolted the people with conscience, and national fury brought the matter into public discourse that the punishment of such offenses ‘the imprisonment of either two years or with fine or with both’ was not only insufficient but also the offence of violation of modesty of women has been inadequately addressed in the penal code. The incident led to a hasty amendment in the PPC and insertion of Section 354A ‘Assault or use of criminal force to woman and stripping her of her clothes’.

In March 1984, a horrifying incident happened in the village Nawabpur, District Multan in the Province of Punjab, Pakistan whereby two young women and a girl child were stripped of their clothes and were made publically nude by use of force and coercion- ‘the Nawabpur incident’. The gravity of the incident can be projected from the fact that it caused to change in the punishment from two years to ‘punished with death or minimum with imprisonment for life’. All the versions of the story indicate that there was hostility between the two families. It was stated that a person from one family had physical relations with a woman from the other family. In revenge, two brothers along with their accomplices broke into the house of the other family. They beat the son and dragged three females outside the house- two daughters-in-law and one nine-year-old daughter, stripped the females naked, and then proceeded to parade all three through the market. The sad reality of the incident was that the crowd grew as the women made their way down the market. With each moment, more men were either criticizing them or hitting their private body parts with sticks, or dancing around them- the vulgar, vulture fanatics. However, one version of the story ends when a person, came across the growing crowd. He was shocked by what was happening so he pulled out his gun and threatened to shoot the men if they did not disappear. People obliged and, after offering the women something to cover themselves, he took them to their home.

After the incident, there was immense pressure on the government because the happening of this incident specified that publically stripping a woman is not less than rape. Owing to that sole incident, a new section, 354-A, was inserted in the Pakistan Penal Code through the Criminal Law Amendment Ordinance 1984. Section 354A provides that:

“Whoever assaults or uses criminal force to any woman and strips her of her clothes and in that condition, exposes her to the public view, shall be punished with death or with imprisonment for life, and shall also be liable to fine”.

While explaining the scope of Section 354A of PPC, the Hon’ble Supreme Court of Pakistan held in a case reported as (2009 SCMR 913), that ‘two conditions must co-exist and must be fulfilled to attract the provision of Section 354-A, P.P.C., firstly there should be stripping of the clothes of the woman and secondly she in that condition be exposed in the public view’.  In another judgment reported as (1997 P.Cr.L.J 600), it was held that ‘Section 354-A, P.P.C. applies in those cases where after stripping of the cloth the lady is made naked and exposed to public view’.

The necessary elements and decisive consideration for application of S.354-A, P.P.C. is an assault and use of criminal force to any woman and stripping her of her clothes and in that condition exposing her to public view. This is a real question to be determined by the Court.

Keeping in view the heinousness of the offence, and saving the victim or survivor women from further secondary victimization, through criminal law amendment in 2016, the publication of the identity of such victim or survivor during investigation, trial or at any other stage, was also prohibited and any disclosure or publication which may lead to the identity of such women was made punishable with imprisonment of upto 3 years, under the section 376A of the PPC.

This offence under section 354A of PPC, assault or use of criminal force to woman and stripping her of her clothes, has also been inserted in the list of scheduled offence under the Anti-Rape (Investigation and Trial) Act, 2021. Consequently, such offences shall be treated as being equivalent to committing a heinous offence like rape and the victim shall be treated with empathy and caution by providing all necessary psycho-social and legal support.

Sharafat Ali Chaudhry is a human rights lawyer and the founding Chairperson of School for Law and Development.

Rabia Mustafa is a Senior Research Fellow at School for Law and Development.

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