Sexual harassment at work — the criminal-law track

Sexual harassment at the workplace is regulated on two parallel tracks in Indian law. The civil-administrative track is the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 — commonly the POSH Act — which requires every employer with ten or more employees to constitute an Internal Committee, prescribes a written-complaint procedure, and supplies a graded set of remedies running from apology and transfer to termination. The criminal track is Section 75 of the Bharatiya Nyaya Sanhita, 2023 [Section 354A IPC]. The section has four limbs — physical contact and unwelcome explicit sexual overtures, a demand or request for sexual favours, showing pornography against the will of a woman, and making sexually coloured remarks. Each of the first three limbs carries a maximum sentence of three years; the fourth carries one year. The doctrinal arc runs from Vishaka v State of Rajasthan, (1997) 6 SCC 241 — the guidelines that filled the legislative gap until 2013 — to the Criminal Law (Amendment) Act, 2013 (which inserted Section 354A IPC) to the Bharatiya Nyaya Sanhita, 2023 (which carries the section forward verbatim as Section 75). The civil and criminal tracks can run in parallel; the procedural matrix in the BNSS, 2023 governs limitation, cognisability, and bail. This guide maps the section.

For three decades, the law on workplace sexual harassment in India was made by the Supreme Court rather than by Parliament. In Vishaka v State of Rajasthan, (1997) 6 SCC 241, the Court — confronted with the brutal gang-rape of Bhanwari Devi, a saathin in a Rajasthan government scheme, and the absence of any legislative framework — drew on Article 14, Article 19(1)(g), Article 21 of the Constitution, and India's obligations under the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) to lay down binding guidelines for the prevention and redressal of sexual harassment at the workplace. The Court's guidelines held the field until two statutes followed: the POSH Act, 2013 (the civil-administrative track) and the Criminal Law (Amendment) Act, 2013 (which inserted Section 354A IPC, the criminal track, after the Justice J S Verma Committee's report following the December 2012 Delhi gang-rape). Section 75 of the Bharatiya Nyaya Sanhita, 2023 carries Section 354A IPC forward into the new criminal code with minor renumbering and no substantive change. This article walks the criminal section and its joins with the civil track.

The law in plain English — Section 75 BNS, four limbs

Section 75 of the Bharatiya Nyaya Sanhita, 2023 — titled "Sexual harassment" — has four limbs, each describing a distinct form of harassment, each with its own sentencing tier. The text of the section is a near-verbatim carry-forward of Section 354A IPC, which itself was inserted by the Criminal Law (Amendment) Act, 2013 on the recommendation of the Justice J S Verma Committee.

The first limb is "physical contact and advances involving unwelcome and explicit sexual overtures". This covers the touch, the grope, the brush-up, the contact that is both physical and sexual in nature, where the contact is unwelcome and the sexual character of the overture is explicit. The sentence is imprisonment of either description for a term that may extend to three years, or with fine, or with both. The same limb also covers verbal advances of an explicit sexual nature accompanying physical contact — the section reads "physical contact and advances", and the courts have read the conjunction "and" to cover the integrated conduct rather than to require both elements separately in every case.

The second limb is "a demand or request for sexual favours". The conduct caught is the proposition — the explicit ask, by word or by inference, for a sexual act or favour. The favour need not be in exchange for any workplace benefit; the section does not require a quid-pro-quo to be made out. Where the favour is sought against a workplace benefit (promotion, transfer, retention) or a workplace detriment (denial of leave, hostile assignment), the conduct is the classic quid-pro-quo harassment that the Vishaka guidelines specifically identified. The sentence is imprisonment of either description for a term that may extend to three years, or with fine, or with both.

The third limb is "showing pornography against the will of a woman". The conduct is the displaying, showing, or causing-to-be-seen of pornographic material — printed, video, electronic — to a woman who has not consented. The element of "against the will" is critical — the showing must be unconsented; the consensual viewing of pornographic material at the workplace, while it may attract employer discipline, is not the offence in Section 75. The sentence is imprisonment of either description for a term that may extend to three years, or with fine, or with both.

The fourth limb is "making sexually coloured remarks". The conduct is the comment, the joke, the innuendo, the remark with sexual content — directed at a specific woman or made in a manner that constitutes harassment of a specific woman. The sentence is one rung lower: imprisonment of either description for a term that may extend to one year, or with fine, or with both. The lower sentence reflects the legislative judgment that the verbal-remarks limb sits at the lower end of the harassment continuum; the other three limbs (physical contact, demand, pornography) sit at the higher end.

Section 75 BNS works only where the complainant is a woman — the section is gender-specific. Workplace harassment with a male complainant runs on the general assault and intimidation provisions — Section 351 BNS [Section 503 IPC] on criminal intimidation, Section 130 BNS [Section 351 IPC] on assault, and the wider penal architecture. The POSH Act, 2013 is similarly gender-specific on the civil track; reform proposals to make both regimes gender-neutral have been periodically debated but not enacted.

From Vishaka to Section 75 — the doctrinal arc

The Supreme Court in Vishaka v State of Rajasthan, (1997) 6 SCC 241 — Verma CJ writing for a three-judge bench — laid down binding guidelines that defined sexual harassment, required every employer to set up a Complaints Committee with a woman as its chair and at least half its members being women, prescribed a complaints procedure, and required preventive steps including the inclusion of anti-harassment provisions in service rules and standing orders. The Court drew on Article 14, Article 15, Article 19(1)(g) (the freedom to practise any profession), Article 21 (life and personal liberty read to include dignity), and India's ratification of CEDAW. The guidelines, by Article 141, were the law of the land until Parliament legislated. The Court reiterated and tightened the guidelines in Medha Kotwal Lele v Union of India, (2013) 1 SCC 297 after years of slow implementation.

The Court in Apparel Export Promotion Council v A K Chopra, (1999) 1 SCC 759 — applying the Vishaka guidelines — held that the dismissal of a senior public-sector officer for sexual harassment of a subordinate was a proportionate response, and that the absence of physical contact is not fatal to the harassment finding: the conduct of attempting to molest, of pressing for proximity, and of creating a hostile environment is itself harassment, even where actual physical contact is averted. The case is the leading authority on the breadth of the harassment definition in the pre-statute period and continues to inform the reading of the four limbs of Section 75.

The Criminal Law (Amendment) Act, 2013 — the Parliamentary response to the Justice J S Verma Committee's report after the December 2012 Delhi gang-rape — inserted Section 354A into the IPC. The four-limb structure and the sentencing tiers in Section 354A IPC were carried into Section 75 of the Bharatiya Nyaya Sanhita, 2023 with no substantive change. The two textual differences worth noting are the renumbering and the slight modernisation of the punctuation; the substantive elements and the punishments are identical.

Section 78 of the BNS [Section 354D IPC] on stalking sits adjacent to Section 75 and is often charged together. Stalking is the following of a woman and contacting, or attempting to contact, such woman to foster personal interaction repeatedly despite a clear indication of disinterest, or the monitoring of a woman's use of the internet, e-mail, or any other form of electronic communication. The first conviction is punishable with imprisonment up to three years and fine; a second conviction up to five years. Workplace harassment that involves following the complainant outside work hours, repeated unwanted contact through office or personal channels, or electronic monitoring frequently attracts Section 78 in addition to Section 75.

The predecessor sections — Section 354 and Section 509 IPC

Before the 2013 amendment inserted Section 354A IPC, the prosecutorial route for workplace harassment ran on two older sections — Section 354 IPC (assault or criminal force on a woman with intent to outrage her modesty) and Section 509 IPC (word, gesture or act intended to insult the modesty of a woman). These sections continue in the BNS — Section 74 BNS [Section 354 IPC] retains the outraging-modesty offence with a sentence of one to five years and a mandatory fine; Section 79 BNS [Section 509 IPC] retains the insulting-modesty offence with a sentence of up to three years.

The Supreme Court in State of Punjab v Major Singh, AIR 1967 SC 63 — a Constitution Bench — defined "modesty" for the purposes of the outraging-modesty offence: modesty is the womanly propriety of behaviour, which a woman, by virtue of her sex, is bound to possess; the test is whether the act of the accused is such as could be perceived as one capable of shocking the sense of decency of a woman. The Court in Rupan Deol Bajaj v K P S Gill, (1995) 6 SCC 194 — the Punjab-DGP-slaps-IAS-officer case — held that a slap on the posterior of a woman officer at a social gathering is a clear case of outraging modesty under Section 354 IPC, and refused to quash the proceedings. The reasoning in Bajaj continues to inform the operation of Section 74 BNS and, by extension, the boundary between Section 74 and the first limb of Section 75 (physical contact and unwelcome explicit sexual overtures).

The practical relationship between Sections 74, 75 and 79 of the BNS is that the prosecutor may charge any one, two, or three of them depending on the facts. The first limb of Section 75 (physical contact) overlaps materially with Section 74; the fourth limb (sexually coloured remarks) overlaps with Section 79. Multiple charges with discharge or composition at the trial stage is the routine practice — the trial court takes its pick on the basis of the evidence led.

The civil and criminal tracks — they can run in parallel

The POSH Act, 2013 — formally the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 — supplies the civil-administrative track. Section 2(n) defines sexual harassment in terms substantially identical to the four limbs of Section 75 BNS, with the addition of "any other unwelcome physical, verbal or non-verbal conduct of sexual nature" as a fifth, residuary head. Section 3 prohibits the conduct. Section 4 requires every employer of ten or more employees to constitute an Internal Committee with a woman as the Presiding Officer. Section 6 establishes a Local Committee at the district level for complainants from establishments with fewer than ten employees and for domestic workers. Section 9 prescribes the written-complaint procedure. Section 11 governs the inquiry. Section 13 lists the remedies available — including written apology, warning, withholding of promotion, withholding of pay raise, termination of service, and deduction from wages of a sum payable as compensation to the complainant. Section 19 imposes duties on the employer including the conduct of awareness programmes. Section 26 carries a penalty for non-compliance — fine of up to fifty thousand rupees and, on a repeat, cancellation of business licence.

The two tracks run in parallel. A complainant may simultaneously file an Internal Committee complaint under the POSH Act and a First Information Report under Section 173 of the BNSS, 2023 [Section 154 CrPC] for an offence under Section 75 BNS. The Internal Committee inquiry continues in parallel with the criminal investigation; neither is barred by the pendency of the other. The bar in Section 11(1) of the POSH Act, on a settlement before initiation of the inquiry, does not apply to the criminal case; conversely, the bar in Aparna Bhat v State of MP, (2021) SCC OnLine SC 230 on bail conditions that compromise the complainant's safety applies to the criminal case but not to the Internal Committee proceedings.

The Internal Committee's findings are not binding on the criminal court — the standards of proof are different (preponderance of probabilities for the civil track, beyond reasonable doubt for the criminal track) and the rules of evidence differ. But the Internal Committee's record — the complaint, the documents, the witness statements taken — is admissible at the criminal trial subject to the ordinary evidentiary tests. Where the Internal Committee finding is in the complainant's favour and the employer has acted on it (termination, transfer, deduction of compensation), that finding is a strong corroborative input for the criminal court; where the finding is against the complainant, the prosecution will need to lead independent evidence on the four-limb predicate.

The procedural matrix — limitation, cognisability, bail

Each limb of Section 75 BNS attracts a distinct cell of the procedural matrix. The First Schedule to the BNSS, 2023 (which replaces the First Schedule to the CrPC) classifies each offence on three axes — cognisable or non-cognisable, bailable or non-bailable, and the court of trial. For Section 75 BNS, the first three limbs (each with a maximum sentence of three years) are cognisable and bailable, triable by any Magistrate; the fourth limb (sexually coloured remarks, with a maximum sentence of one year) is cognisable and bailable, triable by any Magistrate. The cognisable classification means the police can investigate without a Magistrate's order and arrest without warrant; the bailable classification means the accused is entitled to bail as of right under Section 480 BNSS [Section 436 CrPC] once arrested.

The limitation for taking cognisance is governed by Section 514 of the BNSS [Section 468 CrPC]. For an offence punishable with imprisonment for a term not exceeding one year, the limitation is one year; for a term not exceeding three years, the limitation is three years. The fourth limb of Section 75 therefore attracts a one-year limitation, and the first three limbs attract a three-year limitation. The limitation runs from the date of the offence or, where the offence is a continuing one, from the date the offence ceased to continue. The court may take cognisance after the expiry of the limitation period on a Section 514(4) BNSS application for condonation of delay, on showing that the delay has been properly explained or that the interests of justice require condonation — the standard the Supreme Court has applied in the harassment cases has been generous, recognising the structural reasons that delay disclosure of workplace harassment.

The procedural innovations introduced by the BNSS, 2023 also bear. Section 175(3) BNSS [Section 156(3) CrPC] enables a Magistrate to direct police investigation on a complaint where the police have refused to register an FIR; Section 199 BNSS [Section 200 CrPC] empowers the Magistrate to take direct cognisance of a complaint case. Section 187 BNSS preserves the framework for police custody and judicial custody during investigation; Section 193 BNSS governs the closure or charge-sheet report on completion of investigation. The 2023 framework adds explicit timelines — investigation in offences against women must be completed within two months of recording the FIR under Section 193(1) read with the proviso, a tightening over the CrPC regime.

Bail considerations are governed by Section 480 BNSS for bailable offences (entitled as of right) and Section 482 BNSS [Section 438 CrPC] for anticipatory bail. The Supreme Court in Aparna Bhat v State of MP, (2021) SCC OnLine SC 230 — Bhat J writing for the bench — laid down that bail orders in sexual-offence cases must not impose conditions that implicate the complainant in the rehabilitation of the accused; conditions such as requiring the accused to visit the complainant's home, to seek the complainant's forgiveness, or to enter into mediation with the complainant are impermissible. The judgment also bars the recording of a "compromise" or settlement that compromises the complainant's autonomy. The principles in Aparna Bhat are mandatory directions binding on all courts; bail orders that flout them are routinely set aside on revision.

Step by step — bringing a Section 75 BNS complaint

For a complainant proceeding on the criminal track, the procedural map is this. First, document contemporaneously — the date and time of the harassment, the place, the words used, the witnesses if any, and any electronic record (messages, e-mails, CCTV requests). Contemporaneous documentation is the single most determinative input into the eventual evidentiary outcome.

Second, register an FIR under Section 173 of the BNSS at the police station having territorial jurisdiction. Section 173 BNSS [Section 154 CrPC] requires that the information regarding the commission of a cognisable offence be reduced to writing and read over to the informant; the informant is entitled to a copy of the FIR free of cost. For an offence under Section 75 BNS, the FIR registration is mandatory once the information discloses the cognisable offence — Lalita Kumari v Govt of UP, (2014) 2 SCC 1 settled the rule. If the police refuse to register the FIR, the next step is an application to the jurisdictional Magistrate under Section 175(3) BNSS for a direction to register and investigate.

Third, the investigation proceeds under Sections 175 to 193 BNSS. The investigating officer must record the statement of the complainant under Section 180 BNSS [Section 161 CrPC] — and, for an offence against a woman, must record the statement at a place of the complainant's convenience and, where practicable, by a woman police officer. The investigation in an offence against a woman must be completed within two months under the proviso to Section 193(1) BNSS. The closure report or charge sheet under Section 193(2) BNSS goes to the Magistrate at the end of the investigation.

Fourth, the trial proceeds before the Magistrate. The charges under Section 75 (and any concurrent charges under Section 74 or Section 79 or Section 78) are framed under Section 263 BNSS [Section 240 CrPC]. The prosecution leads evidence; the defence cross-examines; the complainant's evidence-in-chief is the centrepiece. The standard of proof is beyond reasonable doubt; the conviction is supportable on the sole testimony of the complainant if it is found to be of sterling quality and free of material contradictions — the principle the Supreme Court has applied in the sexual-offence jurisprudence including State of Punjab v Gurmit Singh, (1996) 2 SCC 384 (on the rape provision) which the courts have extended to the harassment context.

Fifth, the parallel POSH Act inquiry. While the criminal investigation runs, the Internal Committee inquiry under the POSH Act proceeds independently. The complainant may file with the Internal Committee within three months of the incident under Section 9(1) of the POSH Act, extendable by a further three months on sufficient cause. The Internal Committee's report under Section 13, with its recommended action, is implemented by the employer; an aggrieved party may appeal to the appropriate court or tribunal under Section 18.

Where things go wrong — the four common failures

The first failure is delayed disclosure without contemporaneous documentation. The structural reasons that delay workplace harassment disclosure are well-recognised — the power asymmetry, the fear of retaliation, the social cost of disclosure. But the absence of contemporaneous documentation makes the prosecution's evidentiary task harder. The complainant who maintains contemporaneous notes, who shares the incident with at least one trusted colleague at the time, and who preserves electronic records is in a substantially stronger evidentiary position.

The second failure is the FIR-registration refusal and the failure to escalate. Police refusal to register an FIR for a Section 75 BNS offence is a regular feature on the ground. The remedy is the Section 175(3) BNSS application to the Magistrate, and where that fails, a writ petition under Article 226 for a mandamus directing FIR registration. Lalita Kumari v Govt of UP, (2014) 2 SCC 1 settled that the FIR registration is mandatory once the information discloses a cognisable offence.

The third failure is impermissible bail conditions. Notwithstanding Aparna Bhat, bail orders that require the complainant to participate in mediation, to receive an apology, or to share the workplace with the accused continue to appear at the trial-court level. The remedy is a revision petition to the Sessions Court or a writ petition to the High Court; the Aparna Bhat principles are binding and bail orders that flout them are routinely set aside.

The fourth failure is the false-bifurcation argument — that the complainant must choose between the POSH Act civil track and the Section 75 BNS criminal track. The two tracks are explicitly parallel; the POSH Act's Section 27 cross-references criminal proceedings and contemplates their simultaneous prosecution. A complainant who files only on the civil track and later seeks to register an FIR is not estopped by the prior civil filing; a complainant who registers an FIR first and then approaches the Internal Committee is similarly not estopped.

Watch for — the open questions and the gender-neutrality debate

Three open questions sit at the policy boundary of Section 75 BNS. First, the gender-neutrality of the offence. Section 75 protects only a woman; the Justice J S Verma Committee's recommendation in 2013 was that the criminal-harassment offence should be gender-neutral on the complainant side, but the legislature retained the female-complainant restriction. The Code on Wages, 2019 and several other recent statutes use the word "gender" rather than "sex"; the equivalent shift in the criminal-harassment context has been periodically debated but not enacted. The BNS retained the female-complainant text from Section 354A IPC.

Second, the scope of "workplace" itself. Section 75 BNS is not workplace-restricted on its face — it applies to sexual harassment wherever it occurs. The POSH Act, by contrast, is workplace-specific, but defines "workplace" broadly to include any place visited by the employee arising out of or during the course of employment (Section 2(o) of the POSH Act). The criminal investigation under Section 75 frequently arises from a workplace incident but the offence does not depend on the workplace nexus.

Third, the treatment of false complaints. Section 14 of the POSH Act enables the Internal Committee to recommend action against a complainant who has made a malicious complaint, but the section is narrowly worded — the recommendation can be made only on a finding that the complaint is malicious or that the complainant has produced false evidence, and the mere fact that the complaint is not proved is not sufficient. There is no equivalent provision in Section 75 BNS or the BNSS; the general law on prosecuting perjury under Section 229 BNS [Section 193 IPC] applies. The Supreme Court has repeatedly cautioned trial courts against routinely treating an unproved complaint as a false one.

Outcome — what the criminal track produces

A successful prosecution under Section 75 BNS yields a conviction with a sentence of up to three years (or one year for the fourth limb) and a fine, with the additional collateral consequence of a criminal record. Where the accused is in public employment, the conviction triggers disciplinary proceedings under the relevant service rules; in private employment, it routinely triggers termination under the standing orders or contractual terms. The conviction is also relevant in the POSH Act parallel proceedings, where it supplies a near-conclusive evidentiary basis for the Internal Committee's action under Section 13.

The civil-track outcome runs alongside. A POSH Act Internal Committee finding for the complainant produces — under Section 13 — a range of remedies from written apology and reprimand through withholding of promotion or pay raise to termination of service, plus a deduction from wages of a sum payable as compensation to the complainant. The Internal Committee's order is binding on the employer; the complainant aggrieved by the order may appeal under Section 18; the accused similarly.

The doctrinal lesson is that the two tracks together produce a layered remedial architecture. The civil track delivers workplace-discipline outcomes — apology, transfer, withholding of benefits, termination — within a compressed timeline (the Internal Committee inquiry must be completed within ninety days under Section 11(4) of the POSH Act). The criminal track delivers conviction-and-record outcomes within the BNSS timeline (investigation within two months for offences against women; trial timelines vary). The complainant whose objective is workplace remedy has a clear route through the POSH Act; the complainant whose objective is criminal accountability has a clear route through Section 75 BNS; the complainant whose objective is both has both routes open and may pursue them in parallel.

The remaining contested questions — gender-neutrality of the offence, the relationship between the POSH Act compromise route and the criminal prosecution, and the application of Aparna Bhat bail principles in the lower courts — are working themselves out at the High Court level. Until they are settled, the operating manual is the four-limb structure of Section 75 BNS, the procedural matrix in the BNSS, and the parallel-track architecture established by Parliament in 2013 and carried forward unchanged in 2023.