Understanding Section 75 of the Bharatiya Nyaya Sanhita, 2023: Sexual Harassment – Meaning, Scope, and Punishment
By Advocate Avichal Pandey, Advocate, Allahabad High Court
The enactment of the Bharatiya Nyaya Sanhita, 2023 (BNS) marks a significant reform in India's criminal justice system. Among its important provisions is Section 75, which deals with the offence of sexual harassment. The law seeks to protect the dignity, privacy, and bodily autonomy of women by criminalising conduct that is unwelcome, offensive, or sexually inappropriate.
Sexual harassment is not limited to physical assault. It may occur in workplaces, educational institutions, public places, online platforms, or even within private settings. The law recognises that inappropriate behaviour, even without physical violence, can seriously affect a person's mental health, self-respect, and sense of security.
What Constitutes Sexual Harassment Under Section 75 BNS?
Section 75 identifies four specific categories of conduct that amount to sexual harassment when committed against a woman.
1. Physical Contact and Unwelcome Advances
The first category includes physical contact or advances involving unwelcome and explicit sexual overtures. Any unwanted touching, grabbing, hugging, or physical gesture having a sexual intent may fall within this provision.
The essence of the offence is the absence of consent. Even seemingly minor acts may become criminal if they are sexually motivated and unwelcome.
2. Demand or Request for Sexual Favours
A person commits sexual harassment if he directly or indirectly seeks sexual favours from a woman. Such demands may be made verbally, in writing, through messages, or by implication.
This provision commonly applies in situations where employment benefits, promotions, academic advantages, contracts, or other opportunities are linked with demands of a sexual nature. Such conduct amounts to abuse of authority and exploitation.
3. Showing Pornographic Material Against Her Will
Displaying or forcing a woman to view pornographic or sexually explicit material without her consent is also punishable under Section 75.
The offence may occur through mobile phones, computers, social media platforms, printed material, or any electronic medium. The law recognises that forcing someone to view sexually explicit content violates their dignity and privacy.
4. Making Sexually Coloured Remarks
The fourth category covers sexually coloured remarks, including comments, jokes, innuendos, suggestive statements, or degrading observations having sexual overtones.
Remarks that objectify, humiliate, or embarrass a woman because of her gender may attract criminal liability, particularly when they are unwelcome and offensive.
Punishment Under Section 75 BNS
The punishment varies depending on the nature of the act:
For physical contact and advances, demand for sexual favours, and showing pornography (Clauses i, ii and iii):
Imprisonment for a term which may extend to three years, along with a fine, or both.
For sexually coloured remarks (Clause iv):
Imprisonment for a term which may extend to one year, or with fine, or with both.
The distinction reflects the legislature's assessment of the varying degrees of seriousness of different forms of sexual harassment.
Importance of Consent
Consent is the foundation of Section 75. Conduct that is welcome, voluntary, and consensual does not ordinarily amount to sexual harassment. However, where behaviour is unwelcome, coercive, intimidating, or sexually offensive, criminal consequences may follow.
Courts assess each case based on its facts, surrounding circumstances, witness testimony, electronic evidence, and the conduct of the parties.
Workplace and Institutional Responsibility
While Section 75 creates criminal liability, employers and institutions also have obligations under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). Organisations are required to establish Internal Committees, investigate complaints promptly, and ensure a safe working environment.
Thus, a victim may pursue both departmental remedies under the POSH Act and criminal proceedings under the Bharatiya Nyaya Sanhita, where appropriate.
Electronic Evidence in Sexual Harassment Cases
With increasing use of digital communication, electronic evidence plays a crucial role. WhatsApp chats, emails, CCTV recordings, call recordings, social media messages, photographs, and other digital records may become important evidence during investigation and trial, subject to the provisions of the Bharatiya Sakshya Adhiniyam, 2023.
Victims should preserve such material carefully instead of deleting it, as it may strengthen the prosecution case.
Conclusion
Section 75 of the Bharatiya Nyaya Sanhita, 2023 reinforces the principle that every woman has the right to live and work with dignity, safety, and respect. Sexual harassment extends beyond physical assault and includes unwelcome advances, demands for sexual favours, forced exposure to pornography, and sexually coloured remarks. By prescribing criminal penalties for such conduct, the law seeks to deter offenders and promote a culture of mutual respect.
At the same time, every allegation must be investigated fairly and impartially, ensuring that the rights of both the complainant and the accused are protected in accordance with the principles of natural justice and the rule of law.
Author:
Avichal Pandey
Advocate
Allahabad High Court
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