Section 75: Sexual harassment

Overview

Section 75 of the Bhartiya Nyaya Sanhita (BNS) 2023 defines what actions constitute sexual harassment. It aims to protect individuals from unwanted and offensive behaviour of a sexual nature. This section covers a range of behaviours, from unwelcome advances to displaying inappropriate content.

Key Ingredients of the Offence

• Mental element (mens rea): The person committing the act must *intend* to harass or know that their actions are likely to cause harassment. This means the behaviour isn't accidental.
• Physical act (actus reus): This involves the actual behaviour itself – making unwelcome advances, demanding sexual favours, showing pornography, or making sexually coloured remarks.
• Specific circumstances: The behaviour must be unwelcome and create a hostile or offensive environment for the person being harassed. The context of the situation is important.

Punishment under BNS

The BNS does not explicitly state the punishment for sexual harassment in Section 75 itself. It is likely that punishment will be determined based on the severity of the harassment and potentially fall under other sections of the BNS dealing with related offences, or existing laws like the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013. Further clarification on specific penalties is needed.

Important Explanations / Provisos

Currently, Section 75 of the BNS does not contain any specific explanations or provisos that qualify the main provision. The interpretation will rely on general principles of criminal law and potentially case law developed over time.

Illustrations and Practical Examples

• Example 1: A supervisor repeatedly makes unwanted romantic advances towards a subordinate, despite the subordinate clearly expressing their disinterest. This could be considered sexual harassment under Section 75.
• Example 2: A colleague tells a joke with a mildly suggestive theme in a casual conversation. While potentially inappropriate, this might not meet the threshold of ‘sexual harassment’ under Section 75 unless it is persistent, unwelcome, and creates a hostile environment.

Difference from Old IPC Provision (if applicable)

Previously, the Indian Penal Code (IPC) did not have a specific, dedicated section defining 'sexual harassment' in the same way. Offences related to sexual harassment were addressed under provisions like Section 354 (Assault or criminal force to woman with intent to outrage her modesty) and Section 509 (Word, gesture or act intended to insult the modesty of a woman). The BNS aims to provide a more direct and comprehensive definition of the offence.

Nature and Procedure of Offence

• Whether the offence is cognizable or non-cognizable is not specified in Section 75.
• Whether the offence is bailable or non-bailable is not specified in Section 75.
• Which court is generally competent to try the case is not specified in Section 75; it will likely depend on the severity of the offence and the location where it occurred.

Key Takeaways

Section 75 of the BNS provides a clear definition of sexual harassment, focusing on unwelcome and offensive behaviour of a sexual nature. While the specific punishment isn't detailed within this section, it establishes a legal basis for addressing such conduct. It's important to remember that context and intent are crucial in determining whether an action constitutes sexual harassment.