Sexual Harassment against Women: Section 75 BNS, POSH Act and Case Laws

Sexual harassment is one of the most pervasive violations of a woman's dignity, and it takes many forms: physical touching and advances, demands for sexual favours, sexually coloured remarks, and the showing of pornography. India recognised sexual harassment as a legal wrong later than most jurisdictions, with the Supreme Court's Vishaka judgment in 1997 being the doctrinal starting point. The Criminal Law (Amendment) Act, 2013, added Section 354A IPC (now Section 75 BNS), giving criminal law shape to sexual harassment. In the same year, the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, gave civil law shape to it. This module walks through the historical evolution from Vishaka to the modern framework, the substantive law under Section 75 BNS, the mechanism of the POSH Act, the interaction between the criminal and civil regimes, and the leading Indian cases.

1. Introduction

Sexual harassment in Indian law

Sexual harassment, in the Indian legal sense, is unwelcome sexually oriented conduct directed at a woman. The concept emerged in international law through the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by India in 1993. It reached Indian domestic law through Supreme Court adjudication (Vishaka, 1997) rather than through parliamentary legislation. The 2013 amendments to the IPC (now retained in the BNS) and the POSH Act of 2013 finally gave sexual harassment specific legislative form.

The two regimes: criminal and civil

The parallel regimes

Criminal law regime. Section 75 BNS (formerly Section 354A IPC). Prosecuted by the state. Punishment: imprisonment up to three years and fine (or up to one year for sexually coloured remarks).
Civil law regime. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Initiated by the complainant. Remedies: complaint before Internal Committee or Local Committee, findings, recommended action, and disciplinary consequences.
The two regimes are complementary. The victim may pursue both. The criminal law aims at punishment; the civil law aims at institutional change and monetary compensation.

Historical evolution: Vishaka to POSH Act

The Indian law of sexual harassment evolved in four stages. First, the Supreme Court's Vishaka guidelines (1997), which had the force of law in the absence of parliamentary legislation. Second, the codification of sexual harassment as a criminal offence through the 2013 amendment to the IPC (now Section 75 BNS). Third, the parliamentary enactment of the POSH Act, 2013, giving statutory shape to the civil law regime. Fourth, ongoing case law refining both regimes, particularly in the aftermath of the #MeToo movement.

2. Vishaka v. State of Rajasthan (1997)

The case and its facts

📖 Vishaka v. State of Rajasthan, (1997) 6 SCC 241

The petitioners approached the Supreme Court in the aftermath of the gang rape of Bhanwari Devi, a social worker employed by the Rajasthan government's Women's Development Programme, in September 1992. Bhanwari Devi had campaigned against child marriage in her village. In retaliation, she was gang raped by five upper caste men. The trial court acquitted the accused, and the case became a national symbol of the state's failure to protect women workers.

Various NGOs, led by Vishaka, filed a public interest petition seeking guidelines to protect women from sexual harassment at the workplace. In the absence of specific legislation, the petitioners argued that the Supreme Court should fill the gap by laying down guidelines that would have the force of law until Parliament acted.

The judgment as filling a legislative gap

The Supreme Court, in a judgment by Chief Justice J. S. Verma, accepted the petitioners' argument. The Court held that the constitutional guarantees of gender equality (Articles 14, 15, 21) required protection against sexual harassment at the workplace. In the absence of specific legislation, the Court, drawing on its inherent power to fill legislative gaps, laid down guidelines that would apply until Parliament enacted legislation. The Court's guidelines had the force of law and were binding on all employers, public and private.

The Vishaka guidelines

The core Vishaka framework

Definition of sexual harassment: physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography, and any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Employer's duty: to prevent and deter sexual harassment, and to provide procedures for resolving complaints.
Complaints committee: employer to establish an internal complaints committee, headed by a woman, with a majority of women members, and including a member from an outside NGO to prevent institutional bias.
Complaint procedure: complaint to be examined, findings recorded, and appropriate action taken.

International sources: CEDAW

The Court expressly drew on India's international law obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), ratified by India in 1993. The Court held that where domestic law was silent, international conventions to which India was a party could be used to interpret the constitutional guarantees. This is one of the classical Indian applications of the doctrine that international law informs constitutional interpretation.

3. Section 75 BNS: The Criminal Provision

Text of Section 75

Section 75(1) BNS (formerly Section 354A IPC)

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.

Section 75(2) BNS: punishment

For acts (i), (ii) and (iii): rigorous imprisonment up to three years, or fine, or both.
For act (iv) (sexually coloured remarks): imprisonment up to one year, or fine, or both.

The four kinds of conduct

Section 75 codifies the Vishaka definition of sexual harassment. The four kinds of conduct largely track the Vishaka guidelines, with minor differences in wording. The offence is committed by a man (the section is gender-specific in the offender). It is a cognizable offence: the police can register an FIR and investigate without a magistrate's order. It is generally non-bailable: bail is at the discretion of the court, though the Arnesh Kumar guidelines apply since punishment is up to seven years.

The specific punishments

The punishment structure reflects a graduated view of the seriousness of the four kinds of conduct. Physical contact, demand for favours, and pornography all carry up to three years, reflecting their greater seriousness. Sexually coloured remarks carry up to one year, reflecting the general judgment that verbal conduct, though offensive, is less grave than physical conduct or coercive demand.

Cognizable, non-bailable status

Section 75 is a cognizable offence: the police can register an FIR without a magistrate's order and can investigate without prior permission. It is non-bailable: bail is at the discretion of the court. In practice, however, since the maximum punishment for most subsections is three years, the Arnesh Kumar guidelines (codified in Section 35(3) BNSS) apply, and arrest is not automatic. The court considers the necessity of arrest, and often grants bail on execution of a personal bond.

4. The Four Kinds of Conduct under Section 75(1)

Physical contact and unwelcome sexual overtures

The first category, physical contact and advances involving unwelcome and explicit sexual overtures, is the most serious. It covers touching, patting, groping, or other physical conduct of a sexual nature that is not welcome. The touching need not be of intimate parts to fall within the section; any unwelcome touching with a sexual character qualifies. This category overlaps with Section 74 (assault to outrage modesty), and prosecutions often charge both.

Demand or request for sexual favours

The second category addresses the classical quid pro quo dimension of sexual harassment: a person in a position of authority (a superior, teacher, employer, or dominant party) demands or requests sexual favours in exchange for a benefit (promotion, good grade, employment, etc.) or under threat of a detriment (dismissal, poor grade, denial of opportunity). The demand or request need not be explicit; a suggestive comment or implied threat suffices.

Showing pornography against the will of a woman

The third category addresses the use of sexual imagery to intimidate, humiliate, or coerce a woman. Showing pornography can take many forms: displaying explicit images on a computer screen in her presence, sending explicit images through electronic communication, or showing physical materials. The requirement is that it be against her will, that is, she has not consented and would rather not have seen it.

Sexually coloured remarks

The fourth category addresses verbal sexual harassment. Sexually coloured remarks are comments of a sexual nature that are not welcome to the recipient. This includes remarks about the woman's body, suggestions about her sexual availability, sexually explicit language, and similar conduct. The punishment (one year) is lower than for the first three categories, reflecting the classical distinction between physical/coercive conduct and mere verbal remarks.

5. The POSH Act, 2013: The Civil Regime

Overview and scope

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the POSH Act), gave statutory shape to the Vishaka guidelines. The Act applies specifically to sexual harassment at the workplace. It defines sexual harassment along the same lines as the Vishaka guidelines and Section 75 BNS. Its focus is on prevention (through workplace policies and training), on prohibition (through disciplinary sanctions), and on redressal (through Internal Committees and Local Committees).

Definition of sexual harassment

Section 2(n) of the POSH Act

Sexual harassment includes any one or more of the following unwelcome acts or behaviour (whether directly or by implication) namely:

(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

The definition tracks the Vishaka guidelines and Section 75 BNS, adding a fifth residual category (any other unwelcome conduct) that Section 75 BNS does not have. This residual clause is significant: it captures conduct that does not fall within the four specific categories but is nonetheless unwelcome and sexually coloured.

Internal Committee and Local Committee

The two committee mechanisms

Internal Committee (IC): mandatory for every employer with ten or more employees. Composed of a Presiding Officer (a woman employed at senior level), two members from among employees who have commitment to women's rights or legal knowledge, and one member from an outside NGO or with legal knowledge. At least half the members must be women.
Local Committee (LC): established by the District Officer for the district. Handles complaints from employees of small establishments (fewer than ten employees) and complaints against the employer of larger establishments.

Complaint procedure

The complaint procedure under the POSH Act:

The complainant, or her legal heir, files a written complaint with the IC or LC.
The Committee may conduct conciliation if the complainant so requests, but not by way of monetary settlement.
If conciliation is not requested or fails, the Committee inquires into the complaint. The inquiry is quasi-judicial: notice is given, evidence taken, and both sides heard.
The Committee submits a report with its findings and recommendations.
Recommendations may include disciplinary action, monetary compensation, and other measures.

Time limits and confidentiality

Complaint must be filed within three months of the incident, extendable to six months for good cause.
Inquiry must be completed within ninety days.
Employer must implement recommendations within sixty days of receiving the report.
Confidentiality: the identity of the complainant, respondent, witnesses, and details of the inquiry must be kept confidential (Section 16 POSH Act).

Interim relief and civil remedies

The Committee may recommend interim relief during the pendency of the inquiry: transfer of the complainant or the respondent, leave to the complainant up to three months, or any other appropriate action. Final relief may include disciplinary action (up to termination), monetary compensation (payable by the respondent), and preventive institutional measures.

6. Comparison: Section 75 BNS vs POSH Act

Section 75 BNS (Criminal)	POSH Act, 2013 (Civil)
Criminal law. Punishes the offender.	Civil law. Provides redressal to the complainant and institutional change.
Applies wherever sexual harassment occurs, not limited to workplace.	Applies specifically to workplace sexual harassment.
Prosecuted by the state. FIR, investigation, trial.	Initiated by the complainant. Complaint before Internal Committee or Local Committee.
Punishment: imprisonment up to three years (or one year for sexually coloured remarks) and fine.	Remedies: disciplinary action, monetary compensation, institutional measures.
Cognizable and non-bailable offence.	Not a criminal prosecution; no arrest or imprisonment.
Standard of proof: beyond reasonable doubt.	Standard of proof: preponderance of probabilities.
Complaint time limit: general limitation of three years for offences punishable up to three years.	Complaint time limit: three months (extendable to six months).
Both regimes can be pursued in parallel by the same complainant.	Both regimes can be pursued in parallel by the same complainant.

7. Sexual Harassment beyond the Workplace

The POSH Act is limited to workplace harassment. Section 75 BNS is not: it applies wherever the four kinds of conduct occur. Section 75 covers:

Public spaces: streets, markets, public transport, parks.
Educational institutions: schools, colleges, universities (though the UGC's Prevention of Sexual Harassment Regulations, 2015, apply specifically to higher education).
Domestic settings: within the extended family, though the interaction with Section 85 (cruelty by husband or relatives) is close.
Digital spaces: social media, messaging platforms, video conferencing tools. The IT Act, 2000, particularly Section 66E (violation of privacy) and Section 67A (publishing sexually explicit material), also applies.

8. Judicial Elaboration and Landmark Cases

Vishaka v. State of Rajasthan

Discussed above. The foundational case. Guidelines with the force of law.

Apparel Export Promotion Council v. A. K. Chopra

📖 Apparel Export Promotion Council v. A. K. Chopra, (1999) 1 SCC 759

The Supreme Court considered the disciplinary action against an employer for alleged sexual harassment. The Court held that the disciplinary inquiry must scrupulously follow the Vishaka guidelines. The judgment reinforced the Vishaka framework and applied it to a specific disciplinary context. Rule: sexual harassment inquiries at the workplace must follow the Vishaka guidelines, and the standard of proof is preponderance of probabilities.

Medha Kotwal Lele v. Union of India

📖 Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297

The Supreme Court, in a public interest petition to enforce the Vishaka guidelines across India, monitored implementation through a series of orders spanning several years. The Court's persistent engagement, and the Vishaka Committee constituted by the Ministry of Women and Child Development, prompted the parliamentary enactment of the POSH Act, 2013. Rule: judicial supervision can catalyse legislative action.

Punjab and Sindh Bank v. Durgesh Kuwar

📖 Punjab and Sindh Bank v. Durgesh Kuwar, (2020) 12 SCC 152

The Supreme Court considered the application of the POSH Act to a public sector bank. The Court held that the Act applies to all workplaces, public and private, and to all employees regardless of category. The Court also emphasised that the Internal Committee's inquiry must scrupulously follow the procedural requirements of the Act. Rule: POSH Act applies universally to workplaces and their inquiries must follow procedural safeguards.

Aureliano Fernandes v. State of Goa

📖 Aureliano Fernandes v. State of Goa, (2023) 8 SCC 356

The Supreme Court, in a case involving sexual harassment allegations against a university faculty member, laid down detailed guidelines for the implementation of the POSH Act at educational institutions. The Court directed the constitution and functioning of Internal Committees, the training of members, and the confidentiality of inquiries. Rule: comprehensive modern statement of the POSH Act framework in educational institutions.

9. Contemporary Developments and #MeToo

The #MeToo movement, which began in the United States in 2017 and reached India in 2018, has significantly influenced the practical operation of Section 75 BNS and the POSH Act. The movement's Indian phase brought public attention to sexual harassment in the entertainment industry, the media, the corporate world, and academia. Several high-profile complaints were filed, some leading to criminal prosecutions under Section 354A IPC (now Section 75 BNS), some leading to civil proceedings under the POSH Act, and some leading to defamation counter-suits by the accused.

The movement has also highlighted the limits of both regimes. The three-month complaint time limit under the POSH Act has been criticised as too short. The criminal prosecution's slow pace has been criticised as retraumatising. Public discourse around due process, the anonymity of complainants, and the presumption of innocence has become increasingly nuanced.

📖 M. J. Akbar v. Priya Ramani, (2021) SCC OnLine Del 1152

The Delhi Court decided a criminal defamation case brought by former Union Minister M. J. Akbar against journalist Priya Ramani, who had accused him of sexual harassment during the #MeToo movement. The Court acquitted Priya Ramani, holding that the right of a woman to speak out about sexual harassment is protected as an aspect of dignity under Article 21. The judgment observed that the systemic silence around sexual harassment cannot be reinforced through defamation prosecutions. Rule: the right to speak out about sexual harassment is a component of the fundamental right to dignity.

10. Consolidated Landmark Judgments

Vishaka v. State of Rajasthan, (1997) 6 SCC 241. Foundational case. Guidelines with force of law. Definition of sexual harassment.
Apparel Export Promotion Council v. A. K. Chopra, (1999) 1 SCC 759. Application of Vishaka to a disciplinary inquiry.
Medha Kotwal Lele v. Union of India, (2013) 1 SCC 297. Judicial supervision leading to POSH Act enactment.
Punjab and Sindh Bank v. Durgesh Kuwar, (2020) 12 SCC 152. Universal application of POSH Act. Procedural safeguards.
Aureliano Fernandes v. State of Goa, (2023) 8 SCC 356. Guidelines for POSH Act implementation in educational institutions.
Rupan Deol Bajaj v. K. P. S. Gill, (1995) 6 SCC 194. Modest offence not trivial. Section 33 BNS (triviality) does not apply.
Anuja Kapur v. Union of India, (2020) SCC OnLine Del 1200. Delhi High Court on Section 354A IPC in cyber contexts.
M. J. Akbar v. Priya Ramani, (2021) SCC OnLine Del 1152. Right of women to speak out about sexual harassment protected.
State Bank of Patiala v. Vinesh Kumar Bhasin, (2010) 4 SCC 368. Sexual harassment inquiry in a public sector context.
Nisha Priya Bhatia v. Union of India, (2020) 13 SCC 56. Sexual harassment complaints and procedural fairness.
Shanta Kumar v. Council of Scientific and Industrial Research, (2018) 14 SCC 483. POSH Act inquiry standards.
Deepak Verma v. State (NCT of Delhi), (2019) SCC OnLine Del 8567. Section 354A IPC and workplace harassment.
Ruchika Singh Chhabra v. Air France India and Anr., (2018) SCC OnLine Del 9340. Delhi High Court on POSH Act and airlines.

Frequently Asked Questions

What is Section 75 BNS?

Section 75 of the Bharatiya Nyaya Sanhita, 2023 (formerly Section 354A IPC), punishes sexual harassment. It covers four kinds of conduct: (i) physical contact and unwelcome sexual advances; (ii) demand or request for sexual favours; (iii) showing pornography against the will of a woman; and (iv) making sexually coloured remarks. Punishments: up to three years for the first three kinds; up to one year for sexually coloured remarks.

What is the POSH Act?

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), is a civil law statute that codifies the Vishaka guidelines. It applies to sexual harassment at the workplace. It requires employers to establish Internal Committees, provides for complaint procedures, and offers remedies including disciplinary action and monetary compensation. It runs in parallel with the criminal law of Section 75 BNS.

What did Vishaka v State of Rajasthan (1997) decide?

The Supreme Court, in the aftermath of the Bhanwari Devi gang rape case, laid down guidelines to protect women from sexual harassment at the workplace. In the absence of specific legislation, the guidelines had the force of law. They defined sexual harassment, required employers to establish Internal Complaints Committees, and provided for complaint procedures. The judgment drew on India's international law obligations under CEDAW. The guidelines led to the POSH Act, 2013, and to Section 354A IPC (now Section 75 BNS).

What is the difference between the criminal and civil regimes for sexual harassment?

The criminal regime (Section 75 BNS) punishes the offender with imprisonment. It is prosecuted by the state. Standard of proof: beyond reasonable doubt. The civil regime (POSH Act) applies specifically to workplace harassment. It provides for internal complaints, disciplinary action, and monetary compensation. Standard of proof: preponderance of probabilities. Both regimes can be pursued in parallel by the same complainant.

What are the four categories of sexual harassment under Section 75(1) BNS?

Four kinds of conduct: (i) physical contact and advances involving unwelcome and explicit sexual overtures; (ii) a demand or request for sexual favours; (iii) showing pornography against the will of a woman; and (iv) making sexually coloured remarks. The first three carry up to three years imprisonment; sexually coloured remarks carry up to one year. All are cognizable and generally non-bailable.

What is the time limit for filing a POSH Act complaint?

Under the POSH Act, a complaint must be filed within three months of the last incident of sexual harassment. The Internal or Local Committee may extend this to six months for good cause. The three-month limit has been criticised as too short given the psychological difficulty many women face in coming forward. There is no equivalent time limit for a criminal complaint under Section 75 BNS beyond the general limitation of three years for offences punishable up to three years.

Sexual Harassment Section 75 BNS POSH Act