Law and You > Criminal Laws > Bharatiya Nyaya Sanhita, 2023 > Sexual Harassment (S. 75 BNS)
Sexual harassment is a serious violation of personal dignity and equality, and the Indian legal system addresses it explicitly under Section 75 of the Bharatiya Nyaya Sanhita, 2023 (BNS). Introduced through the Criminal Law (Amendment) Act, 2013, this provision was a significant Section 75 BNS defines sexual harassment to include acts such as unwelcome physical contact and advances, demands or requests for sexual favours, showing pornography against a woman’s will, and making sexually coloured remarks. By clearly identifying these behaviours as criminal offenses, the law aims to create safer environments for women, whether in public spaces, workplaces, or private settings.
The inclusion of sexual harassment as a distinct offense under the BNS reflects a broader societal shift toward acknowledging the prevalence and impact of such conduct. It underscores the importance of consent, respect, and personal boundaries, while also providing victims with a legal framework to seek justice. In this context, Section 75 BNS plays a crucial role in promoting gender justice and reinforcing the fundamental right of women to live with dignity and without fear.
Sexual Harassment:
Section 75 BNS:
Sexual Harassment and Punishment for Sexual Harassment:
(1) A man committing any of the following acts—
(i) physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) a demand or request for sexual favours; or
(iii) showing pornography against the will of a woman; or
(iv) making sexually coloured remarks, shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Section 75 BNS is designed to protect women from sexual harassment. Mostly, the laws in India are enacted equally for men and women. However, women are seen to be more vulnerable with certain kinds of crimes such as sexual harassment, rape, dowry, etc.
If a person tries to touch a woman inappropriately, or makes unwelcome physical advances, or shows pornography against the woman’s will, etc. then such an individual can be accused / held guilty / punished for sexual harassment or molestation under Section 75 BNS.
What Does Sexual Harassment Include?
- Unwanted touching, hugging or kissing.
- Staring, leering, whistling, winking.
- Sexually offensive gestures such as deliberate brushing or stroking private parts, smacking lips, elevator eyes, pinching.
- Sexually suggestive, intrusive, explicit and lewd comments, questions, words, songs or sexual remarks on women’s body, clothes, anatomy, sexuality.
- Indecent exposure/flashing of private parts, masturbating in public causing annoyance or harassment to women.
- Invading personal space and privacy through actions such as cornering, peeping, breathing down one’s neck.
- Exposing deliberately/forcibly to sexually explicit internet sites, pornographic films, photographs, text, graffiti, jokes or/ and cartoons.
- Sexually explicit telephone calls, emails, SMS, MMS, letters, cards, posters, gifts.
- Unwanted invites for ‘dates’, inducing or seducing women to have sex or soliciting for sexual favours.
- Stalking (spying, attempting to contact physically or electronically in spite of disinterest).
- Disrobing or compelling a woman to be naked.
- Voyeurism (Watching, capturing and / or circulating pictures and / or film of a woman engaged in private act)
- Insulting the dignity of women through any kind of action, utterances, comments, songs, etc.
- Disrobing or compelling a woman to be naked.
- Voyeurism (Watching, capturing and / or circulating pictures and / or film of a woman engaged in private act)
- Insulting the dignity of women through any kind of action, utterances, comments, songs, etc.
Punishment:
Under this section, the guilty person gets punishment in two ways, depending upon the kind of sexual harassment.
- If the person makes physical contact and advances, or if he demands sexual favours, or if he shows porn against the woman’s will, then he shall be punished with rigorous imprisonment which may extend to 3 years or fine or both.
- If a man is guilty of making sexually coloured remarks, then he shall be punished with imprisonment up to 1 year or with a fine or both.
Classification of Offence:
The offence under this Section is cognizable, bailable, non-compoundable and is triable by any Magistrate.
Judicial Analysis:
In Vishakha v. State of Rajasthan, AIR 1997 SC 3011 case, the Supreme Court laid down complete guidelines with regard to sexual harassment at workplace and it was held that offence related to outraging modesty of women cannot be taken as a trivial offence. The guidelines which were being laid down by the Supreme Court got statutory recognition thereby making an enactment of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
In State of Himachal Pradesh v. Prem Singh, AIR 2009 SC 1010 case, the Court held that if a woman has clearly refused someone for the sexual advances and she has been met with threats to harm her physically or her reputation is being threatened to be harmed or the property, this creates the offence under Section 503 of IPC leading to punishment of two years imprisonment or fine or both. If any individual morphs the pictures of a woman and shares the same with the intention to harass her and defame her, it makes an offence under Section 499 of Indian Penal Code with imprisonment if up to two years or fine or both.
Sexual Harassment at Work Place:
Additionally, the Sexual Harassmento Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (SHWW(PPR) Act), under Section 3, addresses sexual harassment at the workplace specifically by including circumstances, which are related to the workspace and employment relationships. Hence, sexual harassment under the SHWW(PPR) Act includes:
- An implied or explicit promise of preferential treatment in her employment. e.g. a woman is promised promotion if she performs a sexual act;
- An implied or explicit threat of detrimental treatment in her employment. e.g. a woman is threatened with demotion if she does not perform a sexual act;
- An interference with her work or creating an intimidating or offensive or hostile work environment. e.g. a group of workers joke and snigger amongst themselves about sexual matters to humiliate or embarrass a woman colleague;
- Humiliating treatment likely to affect her health and or safety.
Different Forms of Sexual Harassment at the Workplace:
Quid Pro Quo Harassment:
The term quid pro quo means “something for something.” It is a harassment related to the abuse of authority resulting in tangible or noticeable employment related action, such as promotion, increments, change in work assignments, etc. In such cases a supervisor or a person in authority makes job benefits dependent on sexual favours or denies or threatens to deny job benefits if such favours are rejected.
Hostile Work Environment:
This creates an environment in which a woman feels unsafe, uncomfortable or threatened. The creation of a hostile or unfriendly work environment has a negative impact on a woman’s health and safety and diminishes her job performance.
Both forms of harassment are recognized under workplace laws such as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and are punishable under provisions of the Bharatiya Nyaya Sanhita, 2023. Understanding the distinction helps in identifying misconduct accurately and ensuring appropriate legal remedies, thereby promoting a safe and respectful workplace.
Distinguishing between Quid Pro Quo Harassment and Hostile Work Environment
| Quid Pro Quo Harassment | Hostile Work Environment |
| This form of harassment arises when a person in a position of authority demands sexual favours in exchange for employment benefits or threatens adverse consequences for refusal. | This type of harassment occurs when unwelcome sexual conduct creates an intimidating, offensive, or hostile atmosphere at the workplace, making it difficult for an individual to perform their job. |
| Its nature is conditional and transactional | Its nature is environmental and behavioural |
| It usually involves a superior authority (e.g., employer, manager) | It can involve anyone—superiors, colleagues, or even clients |
| There is explicit or implicit demand for sexual favours | It is repeated by severe unwelcome conduct |
| It directly affects employment decisions such as hiring, promotion, salary, or job security | It affects the overall work environment rather than specific job benefits |
| Example: A manager promising promotion in return for sexual favours or threatening termination if such demands are not met. | Example: Persistent inappropriate jokes, sexually explicit comments, displaying offensive material, or unwelcome physical behaviour that creates discomfort. |
Vishakha v. State of Rajasthan case Guidelines
Bhanwari Devi, a dalit government employee who tried to prevent child marriage as part of her duties as a worker of the Women Development Programme was raped by the landlords of the community. The rape survivor did not get justice from Rajasthan High Court and the rapists were allowed to go free. ‘Vishakha’, a women’s rights group filed a public interest litigation in the Supreme Court of India. This case brought to the attention of the Supreme Court of India, “the absence of domestic law occupying the field, to formulate effective measures to check the evil of sexual harassment of working women at all work places.” The Supreme Court gave guidelines for protection of women from sexual harassment of women at work place. The court stated that these guidelines were to be implemented until legislation is passed to deal with the issue.
Vishakha Case Guidelines:
The main ingredients of the guidelines issued by the Hon’ble Supreme Court of India are elucidated as follows.
Definition of Sexual Harassment:
The guideline defines sexual harassment as an unwanted sexual determination which is directly or impliedly intended to cause the following:
- Physical contact or advances.
- A demand or request for sexual favours.
- Sexually coloured remarks.
- Showing pornography.
- Any other unwelcome conduct whether it is physical, verbal or non-verbal.
Provide a Safer Working Environment:
It is the duty of each employer to provide a safe working environment for each and every employee working in the organisation to grow and prosper. This involves taking adequate steps towards protecting the interest of the women employees and ensuring that none of the employees indulges in the practice of sexual harassment. Appropriate disciplinary action must be taken by the employer if any case regarding sexual harassment or ill-treatment of a woman employee is found.
Duty of the Employer to File a Complaint:
The guidelines also lay down the obligation of the employer to file a complaint if the conduct towards an employee amounts to a criminal offence which is punishable under the Indian Penal Code. The employer needs to initiate an action and ensure that the witnesses are not further victimised.
Setting Up of Complaint Redressal Committee:
The guidelines make it mandatory for all organisations to set up a complaint redressal committee in order to ensure that the complaints of the employees are dealt with properly and suitable action is taken in response to such a complaint.
Employer to Assist the Employee if she is Sexually Harassed:
If the employee is sexually harassed or tortured by a third party, like in the case of Bhanwari Devi, an employer should assist the employee in every possible manner. The guidelines provide that the employers are required to assist the employees in terms of both preventive actions and support to these victims.
Duty of Employer to Spread Awareness:
It is also the duty of the employer to spread awareness in his organisation with regard to the matters pertaining to sexual harassment and the safety of women. This can be done by notifying the employees time as well as conducting workshops and devising other interactive ways to make the female employees aware of their rights.
Duty of Government to Widen the Scope of These Guidelines:
The guidelines also urge the centre and the state government to pass the necessary legislation so as to ensure that the private sector is also bound by these guidelines. This would help in the growth and prosperity of the women as well as the nation as a whole.
The Vishaka guidelines were later on replaced by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013. The new act passed in 2013 broadens the definition of aggrieved women to involve women of all ages, in order to suit the modern-day conditions. It also broadens the scope of the term workplace which was earlier limited only to the traditional office set-up.
Conclusion:
The recognition of sexual harassment as a specific offense under Section 75 BNS marks a significant advancement in the protection of women’s rights and dignity in India. By clearly defining various forms of unwelcome sexual conduct, the law not only provides a strong legal remedy for victims but also establishes clear boundaries for acceptable behaviour in society.
However, the true effectiveness of these legal provisions lies in their proper implementation, awareness among individuals, and sensitivity within institutions responsible for enforcement. Legal safeguards must be complemented by social change, where respect, consent, and equality become fundamental values in everyday interactions.
For More Articles on the Bharatiya Nyaya Sanhita, 2023 Click Here