Bharatiya Nyaya Sanhita (BNS) is the new criminal legislation that replaces India’s older Penal Code (IPC). This move is a bid to carry out a comprehensive overhaul of the Indian Penal Code and modernise the Indian criminal justice system. Among other crimes, the changes in the BNS has strengthened the legal framework for addressing crimes against women, including sexual harassment. These changes have led to clearer definitions and stricter penalties have transformed laws to be more victim-centred in their applicability.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (PoSH) is a separate legislation which was specifically designed to address sexual harassment in the workplace.
This means that changes made to the BNS do not directly change the PoSH Act or its procedures.
Organisations must continue to follow the existing PoSH Act of 2013, as no amendments have been made to it directly.
Despite this, the changes to the BNS have had a significant impact on the implementation and enforcement of the PoSH law in India. These changes can act as learnings which can be adopted by organisations to fortify their commitment to the PoSH Act and build a strong anti-harassment culture.
A broad understanding of sexual harassment
The BNS has given expanded definitions to crimes, including a very exhaustive definition to the offence of “sexual harassment”. Its definition under Section 354A of the BNS is as follows:
“Sexual harassment includes unwelcome physical contact and advances, requests for sexual favors, making sexually colored remarks, showing pornography against someone’s will, and any other unwelcome behavior.”
Therefore, the BNS now criminalises several acts, whether subtle or apparent, as sexual harassment. For organisations, this extended understanding of sexual harassment holds several key takeaways for ensuring successful implementation of PoSH directives, such as:
- This definition is similar to how sexual harassment has been defined under the PoSH Act. Hence, it signifies the importance for organisations to communicate to the immediate and appropriate consequences for any instance of sexual harassment, regardless of its perceived severity.
- The broad understanding of harassment impresses upon employers the need to create policies that clearly define what constitutes sexual harassment, focusing on subtle and non-verbal forms.
- This also emphasises the need for organisations to encourage employees to speak up about any inappropriate behaviour, assuring them that even minor misconducts will be taken seriously.
Updates and protections
The Bharatiya Nyaya Sanhita now ensures that complainants of sexual harassment are informed about the progress of their cases, with mandatory updates on investigations. Complainants are provided with robust legal support and protections to ensure they can report offences without fear of retribution or dismissal. Such provisions are also made in the PoSH Act.
Organisations can emulate the principles laid down by the BNS and PoSH Act, by establishing clear guidelines that ensure a fair and unbiased investigation process. They must ensure that complainants are fully informed of their rights, the steps involved in filing a complaint, and what to expect during an inquiry. Further, they may also assist by:
- Offering psychological counselling services to complainants, helping them to feel supported and understood.
- Building better access to legal resources, ensuring that complainants can pursue their cases without any fear.
- Monitoring the workplace environment closely after a complaint is filed, ensuring that the victim is not facing retaliation.
- Providing complainants with ongoing support and assurance that their safety and well-being are a priority for the organisation.
FAQs
What is Section 75 of the Bharatiya Nyaya Sanhita?
Section 75 of the Bharatiya Nyaya Sanhita (BNS) is the statutory provision that defines and criminalises the offence of sexual harassment in India’s new criminal code, replacing the old Indian Penal Code for many offences. It lays down specific acts that constitute sexual harassment and categorises them under punishable offences, thus providing a clearer and modernised framework for dealing with such misconduct in the public sphere.
Who is protected under Section 75?
Under the language of Section 75, the offence is framed in terms of a man committing acts of sexual harassment against a woman. This reflects the BNS’s focus on protecting women from unwanted sexual conduct, consistent with the historical orientation of sexual harassment laws in India. In essence, the provision recognises women as the class of victims to be protected under this specific section, and men as potential offenders.
What acts are covered under Section 75?
Section 75 covers a range of unwelcome and explicit sexual conduct. Specifically, it criminalises: (i) physical contact and advances involving unwanted sexual overtures, (ii) demand or request for sexual favours, (iii) showing pornography against someone’s will, and (iv) making sexually coloured remarks. These categories span from physical and verbal acts to the non-consensual display of sexual material, aiming to capture diverse manifestations of harassment.
What is the punishment under Section 75?
The punishment under Section 75 varies by the nature of the act. For more severe forms, such as unwelcome physical contact, sexual advances, or showing pornography, the law prescribes rigorous imprisonment for up to three years, or a fine, or both. For making sexually coloured remarks, which is treated as a less grave offence, the penalty is imprisonment (which may be simple or rigorous) for up to one year, or a fine, or both.
How does Section 75 define ‘sexual harassment’?
Section 75 defines sexual harassment as a spectrum of undesirable behaviours including unwelcome physical contact, requests for sexual favours, the display of pornographic material against a woman’s will, and sexually suggestive or coloured remarks. This formulation recognises that harassment can be both physical and non-physical, and it criminalises conduct that infringes on a woman’s dignity and autonomy.
Is consent a defense under Section 75?
Section 75 focuses on unwelcome conduct. This means only behaviour that is unwanted or against a woman’s will is punishable. If an interaction was mutually consensual, it generally would not fall under Section 75. Whether conduct was truly consensual is decided by the court after examining all the facts and circumstances of the case.
Can verbal harassment alone qualify under Section 75?
Yes. Section 75 expressly includes “making sexually coloured remarks” as one of the acts constituting sexual harassment.