POSH Act and Criminal Law: BNS Section 75

Workplace sexual harassment can be both misconduct under the POSH Act and an offence under the Bharatiya Nyaya Sanhita, 2023. The two systems run side by side: the POSH Act provides a civil and service remedy through the committees, while criminal law punishes the harasser. Section 28 preserves the criminal remedy, and several provisions connect the two. This note covers section 75 BNS, the related offences and the links between the two systems.

1. Sexual Harassment under Section 75 BNS

Figure 1: Section 75 BNS, formerly section 354A IPC

Offender. The section applies to a man who commits the listed acts.
Section 75(1). Physical contact and advances involving unwelcome and explicit sexual overtures; a demand or request for sexual favours; showing pornography against the will of a woman; or making sexually coloured remarks.
Section 75(2). For the first three: rigorous imprisonment up to three years, or fine, or both.
Section 75(3). For sexually coloured remarks: imprisonment of either description up to one year, or fine, or both.
Overlap. The acts track the POSH Act's definition in s.2(n), but s.75 is not limited to the workplace.

2. Related Offences

Offences against women, BNS and former IPC

Figure 2: Offences against women, BNS and former IPC

Depending on the facts, workplace conduct may also amount to assault or criminal force with intent to outrage modesty (s.74), assault with intent to disrobe (s.76), voyeurism (s.77), stalking (s.78), or a word, gesture or act intended to insult the modesty of a woman (s.79). Section 11(1) of the POSH Act, which still refers to s.509 IPC, now reads with s.79 BNS.

3. How the Two Systems Connect

Section 28. The POSH Act is in addition to, and not in derogation of, any other law, so a committee proceeding does not bar a criminal case.
Section 19(g). The employer must assist the woman if she chooses to file a complaint under the penal law.
Section 19(h). The employer must cause action to be initiated against the perpetrator, including one who is not an employee, if the woman so desires.
Section 11(1). For a domestic worker, the Local Committee forwards a prima facie case to the police within seven days; on breach of a settlement, the committee may also forward the complaint to the police.
Section 11(2). On conviction, the court may order the respondent to pay the woman such sums as it considers appropriate, having regard to s.15.

4. The Two Remedies Compared

POSH Act and criminal law

Figure 3: POSH Act and criminal law

The two proceedings differ in purpose and standard of proof. A committee may find misconduct proved on the material before it even where a criminal court acquits for want of proof beyond reasonable doubt. Under general service law, departmental and criminal proceedings may run at the same time, as the Supreme Court explained in Capt. M. Paul Anthony v Bharat Gold Mines Ltd (1999), though a stay may be justified where both rest on identical, complicated facts.

⚠ Exam trap

Section 75 BNS, formerly s.354A IPC, punishes a man for unwelcome physical contact and explicit sexual overtures, demanding sexual favours or showing pornography against a woman's will with up to three years' rigorous imprisonment, and sexually coloured remarks with up to one year. The POSH Act's s.28 preserves criminal remedies; s.19(g) and (h) require the employer to help with and initiate criminal action; and the s.11 reference to s.509 IPC now reads as s.79 BNS. Offences under the POSH Act itself, in s.26, concern the employer and are non-cognizable.

5. Frequently Asked Questions

Can a woman file both a POSH complaint and a police complaint?

Yes. Section 28 makes the POSH Act additional to other laws, and s.19(g) requires the employer to assist her if she chooses to file a criminal complaint. The committee inquiry and the criminal case can proceed independently.

Which BNS section replaced section 354A IPC?

Section 75 of the Bharatiya Nyaya Sanhita, 2023. Section 509 IPC, referred to in s.11 of the POSH Act, corresponds to s.79 BNS.

Does acquittal in the criminal case end the POSH proceedings?

Not automatically. The committee inquiry is a civil and service proceeding that does not need proof beyond reasonable doubt, so misconduct may be found proved on the material before the committee even where the criminal court acquits.

Can a man be the victim under section 75 BNS?

No. Section 75 applies to acts by a man against a woman, just as the POSH Act protects only an aggrieved woman.

6. Related Topics

Topic 4: Sexual Harassment, Meaning and Scope. The POSH Act definition.
Topic 11: Inquiry into a Complaint, Section 11. The domestic worker route to the police.
Topic 22: Penalty and Cognizance. Offences under the POSH Act itself.
Topic 24: POSH and Service Rules. The disciplinary consequence.