Sexual Harassment, Voyeurism, Stalking (Sections 354A–354D IPC)

Sections 75 to 78 of the Bharatiya Nyaya Sanhita, 2023 (BNS) — re-enacting Sections 354A to 354D of the Indian Penal Code, 1860 (IPC) — codify the cluster of standalone offences against women that the Criminal Law (Amendment) Act, 2013, introduced after the Nirbhaya gang rape and the Justice J. S. Verma Committee Report. The cluster sits between the umbrella offence of outraging modesty under Section 74 BNS (previously Section 354 IPC) and the graver penetrative offences under Sections 63 to 73 BNS on rape. Each provision criminalises a distinct mischief that earlier prosecutions had to squeeze into the broad language of Section 354 IPC or the catch-all of Section 509 IPC: explicit sexual overtures and demands for favours; assault to disrobe; surreptitious watching or capturing of private images; and persistent unwelcome following or electronic monitoring.

The structural logic is layered. Section 75 BNS targets the workplace and quasi-public space where the Vishakha guidelines had identified a regulatory gap. Section 76 BNS deals with the disrobing pattern that had earlier been a Madhya Pradesh state amendment to the criminal force regime under Section 350 IPC. Section 77 BNS is a privacy-and-dignity offence that anticipates the camera phone and the cloud. Section 78 BNS treats stalking — verbal, physical and electronic — as a graduated offence with a higher tariff for repeat conduct. The BNS retains all four sections substantively unchanged; only the trigger phrase "Any man who" in Section 76 BNS has been replaced by "Whoever", a textual cosmetic that does not alter the gendered character of the offence.

Statutory anchor and scheme

The four sections share a common skeleton. Each identifies a discrete actus reus, calibrates a punishment band, and slots into a wider statutory architecture that includes the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the POSH Act), the Information Technology Act, 2000, and the POCSO Act, 2012, where the victim is below eighteen. Charging is rarely standalone: a typical first-information report under Section 78 BNS will also invoke Section 351 BNS on criminal intimidation and Section 79 BNS (previously Section 509 IPC) on insulting the modesty of a woman by word, gesture or act. Where the conduct escalates to physical contact, Section 74 BNS (the umbrella modesty offence) is invoked alongside.

The cluster is gender-asymmetric. The victim must be a woman; the perpetrator, in Sections 75, 77 and 78 BNS, must be a man. Section 76 BNS uses "Whoever", but the disrobing intent reads naturally only against a male perpetrator. Sexual abuse of male and transgender victims falls outside this cluster and is governed by the older modesty and intimidation provisions, the IT Act on dissemination of explicit material, and POCSO for minor victims regardless of gender. The Verma Committee had recommended a gender-neutral framework; Parliament chose otherwise in 2013 and has not revisited the choice in the BNS.

Sexual harassment — Section 75 BNS

Section 75 BNS lists four kinds of conduct that constitute sexual harassment when committed by a man against a woman: 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; and making sexually coloured remarks. The first three carry rigorous imprisonment up to three years, or fine, or both. The fourth — sexually coloured remarks — carries the lower tariff of imprisonment up to one year, or fine, or both. The differential acknowledges that verbal conduct is an actus reus of lesser gravity than physical contact or coerced viewing of explicit material.

The provision traces directly to the Supreme Court's foundational ruling in Vishakha v. State of Rajasthan, AIR 1997 SC 3011, which read sexual harassment at the workplace as a violation of Articles 14, 15, 19(1)(g) and 21 and laid down the binding interim guidelines that occupied the field until the POSH Act was passed in 2013. The same year, the IPC was amended to introduce Section 354A, now reproduced as Section 75 BNS. The civil-side complaints mechanism (the Internal Complaints Committee, the Local Committee, the Inquiry under Section 11 of the POSH Act) and the criminal-side offence under Section 75 BNS run on parallel tracks; the survivor may pursue either or both. The Supreme Court in Medha Kotwal Lele v. Union of India (2013) 1 SCC 297 reinforced the Vishakha framework and directed strict compliance by all employers.

Disrobing — Section 76 BNS

Section 76 BNS criminalises assault or criminal force on a woman, or abetment of such an act, with the intention of disrobing her or compelling her to be naked. The minimum is three years and the maximum is seven years, with mandatory fine. The gravity of the offence reflects the symbolic and dignitary harm of public stripping — a pattern of violence that had emerged in caste-related and political assaults and had previously been prosecuted only under the broad umbrella of Sections 350 to 354 IPC on criminal force, assault and outraging modesty. The section was first adopted as a state amendment in Madhya Pradesh and was carried into the Code-level statute in 2013. Section 45 BNS on abetment is incorporated by express reference: a person who instigates, conspires with or aids the disrobing is punishable as a principal.

Voyeurism — Section 77 BNS

Section 77 BNS criminalises three distinct acts: watching a woman engaged in a private act; capturing the image of a woman engaged in a private act; and disseminating such an image. The actus reus requires that the act take place in circumstances where the woman would usually have an expectation of not being observed by the perpetrator or by any other person at the perpetrator's behest. "Private act" is defined in Explanation 1 to include any act in a place reasonably expected to provide privacy where the woman's genitals, posterior or breasts are exposed or covered only in underwear; or where she is using a lavatory; or where she is performing a sexual act not ordinarily done in public.

Explanation 2 introduces a critical refinement that the camera-phone era made necessary. Where the woman consents to the capture but not to the dissemination, the dissemination by the perpetrator is itself an offence under this section. The two-track consent — capture-yes, share-no — is the legislative response to revenge-pornography fact patterns that the IT Act alone could not adequately address. Punishment escalates: first conviction attracts one to three years and fine; a second or subsequent conviction attracts three to seven years and fine. The graduated tariff is one of only two examples in this cluster of an explicit recidivist multiplier on the face of the section, the other being Section 78 BNS.

Stalking — Section 78 BNS

Section 78 BNS criminalises two patterns of stalking when committed by a man against a woman. The first is following a woman and contacting, or attempting to contact, her to foster personal interaction repeatedly despite a clear indication of disinterest. The second is monitoring her use of the internet, email or any other form of electronic communication. The two-prong structure was deliberate: the Verma Committee had identified that the offline pattern of physical following and the online pattern of electronic surveillance were converging into a single pattern of harassment that needed a single offence.

The proviso carves out three statutory defences. First, the conduct was pursued for the purpose of preventing or detecting crime by a person entrusted with that responsibility by the State (the law-enforcement defence). Second, the conduct was pursued under any law or to comply with any condition or requirement imposed under any law (the lawful-authority defence). Third, the conduct was reasonable and justified in the particular circumstances (the residual reasonableness defence). The third proviso is the most heavily litigated; it is the route by which legitimate journalism, litigation-related observation, and lawful private investigation are kept outside the offence. The first conviction attracts imprisonment up to three years and fine; a second or subsequent conviction attracts imprisonment up to five years and fine.

The Apparel Export Promotion line — modesty in the workplace

The Supreme Court's reading of "sexual harassment" in the workplace was first put into doctrinal shape in Apparel Export Promotion Council v. A. K. Chopra, AIR 1999 SC 625, decided two years after Vishakha. The Court upheld the dismissal of a senior officer who had attempted to molest a subordinate, holding that an attempt to molest, falling short of physical contact, is itself a form of sexual harassment that does not require proof of completed touching. The reasoning has carried into Section 75 BNS: clauses (i) to (iv) are independent actus reus heads, and a prosecution may succeed on any one of them without establishing the others. The Court also held that the test is whether the conduct, viewed objectively, would be considered humiliating by a reasonable woman; the perpetrator's subjective belief that the conduct was welcome is not the test. The same standard travels into the proviso to Section 78 BNS — the third defence of "reasonable and justified" conduct is judged objectively, not by the man's subjective perception.

The companion general definition of "voluntarily" in Section 2(38) BNS applies to each of the four sections in the cluster: the prohibited act must be voluntary in the strict sense — done with the intention of causing the prohibited consequence, or with knowledge that it is likely to cause it. A man who, by accident or genuine inadvertence, brushes against a woman in a crowded train does not commit Section 75(1)(i) BNS; he must have been making advances. The same point operates in Section 77 BNS — a man who incidentally captures a woman in the background of a public photograph does not commit voyeurism; he must have been targeting the private act in circumstances of expected privacy. The mens rea analysis is therefore part of every charge sheet: the prosecution leads evidence of pattern, repetition, opportunity and demeanour; the defence answers with the actus-was-accidental story or the consent-was-given story. The trial court evaluates the totality of the circumstances and is not bound to accept either narrative wholesale.

The Bombay High Court in State of Maharashtra v. Madhukar Narayan Mardikar, AIR 1991 SC 207, stated the wider principle that has carried into the Section 75 BNS jurisprudence — every woman, irrespective of her social standing, is entitled to her dignity. The reasoning underwrites the equal protection of working women under Section 75 BNS and refuses to dilute the offence by reference to the survivor's character.

The eve-teasing guidelines — Samuthiram and after

The expression "eve-teasing" has no statutory definition in the BNS, but the Supreme Court in Deputy Inspector General of Police v. S. Samuthiram, (2013) 1 SCC 598, decided just before the 2013 amendment, treated it as the umbrella label for verbal eve-teasing, physical eve-teasing, psychological harassment, sexual harassment, and harassment through some object. The Court issued a set of binding directions to the State Governments — deputing plain-clothed female police officers in transport hubs and shopping malls; installing CCTV in strategic positions; making every public-service vehicle responsible for taking incidents to the nearest police station; establishing women's helplines in every city and town; and putting up boards cautioning against the conduct. The directions remain operative and supply the policy context within which Sections 75 to 78 BNS are now applied.

Rupan Deol Bajaj v. K. P. S. Gill, (1995) 6 SCC 194, is the doctrinal anchor for the meaning of "modesty" in the cognate Section 74 BNS — modesty is a woman's sex; the test is the reaction of the reasonable woman; a slap on the posterior in a social setting is enough. The reasoning carries across Sections 75 and 79 BNS where the explicit/implicit content of the gesture is in issue. The reach of the modesty concept is not unlimited: an ordinary insult or rude remark not directed at the woman as a woman does not attract Section 75 BNS or Section 79 BNS, and the prosecution must lead specific evidence of the sexual character of the conduct.

The umbrella — Section 74 BNS and Section 79 BNS

Sections 75 to 78 BNS do not stand alone. Two umbrella offences sit on either side. Above them is Section 74 BNS (previously Section 354 IPC), which criminalises assault or use of criminal force to a woman with intent to outrage her modesty — the older, broader offence under which much of the conduct now caught by Sections 75 and 76 BNS used to be prosecuted. Below them is Section 79 BNS (previously Section 509 IPC), which criminalises any word, gesture or act intended to insult the modesty of a woman, including any sound, gesture or exhibition of an object intended to be heard or seen by such woman, or any intrusion into her privacy. The three layers — Section 74 (physical force), Sections 75 to 78 (the standalone offences), and Section 79 (verbal or gestural insult) — together cover the field.

Charge framing in any given case requires the trial court to identify which layer fits the facts. Where physical contact is alleged but the precise sexual character cannot be pinpointed, Section 74 BNS is the safer charge. Where the conduct is verbal or gestural, Section 79 BNS or Section 75(1)(iv) BNS is appropriate. Where the conduct involves capture or transmission of images, Section 77 BNS is the specific provision. Where there is repeated following or electronic monitoring, Section 78 BNS is the right peg. The cognate offences of Sections 126 and 127 BNS on wrongful restraint and confinement are commonly added when the woman was kept against her will during the conduct.

Procedure and evidentiary safeguards

The procedural framework that surrounds these offences is calibrated to the survivor's safety and dignity. Investigation under the BNSS proceeds wherever possible through a woman police officer. The survivor's statement is recorded by a magistrate, and audio-video recording is encouraged. Trial in the magistrate's or sessions court is usually held in camera where the offence forms part of a wider sexual-offences charge sheet. The presumption of correctness attaches to the survivor's testimony in the same way it does in the rape provisions; she is not an accomplice and her sole testimony, if credible, is enough.

The cluster also engages adjacent statutes. Workplace incidents under Section 75 BNS run parallel to a complaint to the Internal Complaints Committee under the POSH Act, 2013. Voyeuristic capture and dissemination under Section 77 BNS engage Section 66E of the IT Act and the rules under Section 67A. Stalking under Section 78 BNS, when conducted electronically, engages Section 67 of the IT Act. Where the survivor is below eighteen, POCSO occupies the field with its mandatory minimums and special procedure. The civil remedy under the Protection of Women from Domestic Violence Act, 2005, is available where the perpetrator is a person in a domestic relationship.

Defences and cognate offences

The defences are narrow. Consent is not generally a defence — the offences are predicated on conduct "against the will" or "despite a clear indication of disinterest". The general defences in Sections 14 to 44 BNS on general exceptions apply in principle. Mistake of fact under Section 14 BNS is the most plausible — a man who genuinely believed the conduct to be welcome may invoke it, but the burden of proving the belief lies on him and is rarely discharged in practice. Section 17 BNS on acts done in good faith for the benefit of a person is unavailable: nothing in this cluster can be characterised as for the woman's benefit.

Cognate charges are routinely added. Where the conduct includes threats, the criminal intimidation regime under Section 351 BNS is the natural companion. Where the conduct is repeated and there is evidence of a meeting of minds with another, Section 61 BNS on criminal conspiracy is invoked. Where the conduct stops short of completion but the determination is established, Section 62 BNS on attempt is available. Where the conduct is committed by a husband or relative within the matrimonial home, Section 86 BNS on cruelty (previously Section 498A IPC) is the parallel charge. The reading of "common intention" in Section 3(5) BNS is invoked when more than one perpetrator is implicated.

Sentencing patterns

Sentencing across the cluster reflects the legislative gradation. Section 75(1)(iv) BNS — sexually coloured remarks — sits at the bottom with up to one year. Sections 75(1)(i) to (iii) BNS sit at the next level with up to three years. Sections 77 and 78 BNS sit at the same first-conviction tariff but escalate to three to seven years (Section 77) or up to five years (Section 78) on a repeat. Section 76 BNS — disrobing — has the highest first-offence band: three to seven years with mandatory fine. The trial court's sentencing discretion under Sections 4 to 13 BNS on punishments operates within these bands; community service under Section 4(f) BNS is not available because each section in this cluster prescribes a non-trivial term of imprisonment and fine.

Compounding is restricted. The Schedule to the BNSS treats Sections 75(1)(iv) BNS as compoundable by the woman with leave of the court; Sections 75(1)(i)–(iii), 76, 77 and 78 BNS are non-compoundable. Bail follows ordinary cognizable-offence rules; for Section 76 BNS the higher band can attract a presumption against routine bail in serious-injury fact patterns. The wider IPC and BNS notes on procedure detail the cross-references in BNSS.

Exam angle and quick recap

The four anchors are: the four-fold actus reus of Section 75 BNS with its two-tier punishment; the disrobing intent in Section 76 BNS with its three-to-seven-year band; the three-act voyeurism actus reus of Section 77 BNS with its dissemination-without-consent rule and its first-conviction-versus-repeat split; and the two-prong stalking offence in Section 78 BNS with its three statutory defences. The Vishakha framework, the Samuthiram directions, and the parallel layers of Section 74 BNS and Section 79 BNS round out the conceptual map. For prelims-style questions the most often-tested point is the dissemination rule of Explanation 2 to Section 77 BNS — consent to capture is not consent to share — and the third defence under Section 78 BNS on reasonable and justified conduct.

Frequently asked questions

How is sexual harassment under Section 75 BNS different from outraging modesty under Section 74 BNS?

Section 74 BNS (previously Section 354 IPC) requires assault or use of criminal force with intent to outrage modesty — there must be a physical assault or force, and the intent or knowledge must relate to modesty. Section 75 BNS (previously Section 354A IPC) carves out four specific patterns — unwelcome physical contact and explicit overtures; demand or request for sexual favours; showing pornography against will; sexually coloured remarks — and applies even where there is no physical force. The two charges are often laid in the alternative.

Can the same image be a Section 77 BNS offence even if the woman consented to its capture?

Yes. Explanation 2 to Section 77 BNS is the answer. Where the woman consents to the capture of the image but not to its dissemination to third persons, and the perpetrator nevertheless disseminates the image, the dissemination is itself an offence under Section 77 BNS. The consent to capture is not an umbrella consent extending to onward sharing. The provision is the legislative response to revenge-pornography fact patterns that the Information Technology Act alone could not adequately address.

What are the three defences available to a stalking charge under Section 78 BNS?

The proviso to Section 78(1) BNS lists three. First, the conduct was pursued for the purpose of preventing or detecting crime by a person entrusted by the State with that responsibility — the law-enforcement defence. Second, the conduct was pursued under any law or to comply with any condition imposed under any law — the lawful-authority defence. Third, the conduct was reasonable and justified in the particular circumstances — the residual reasonableness defence. The third is the most heavily litigated and is the route by which legitimate journalism and lawful investigation are kept outside the offence.

Are Sections 75 to 78 BNS gender-neutral?

No. The victim must be a woman. The perpetrator must be a man in Sections 75, 77 and 78 BNS. Section 76 BNS uses 'Whoever' but the disrobing intent reads naturally only against a male perpetrator. Sexual abuse of male and transgender victims falls outside this cluster and is governed by the older modesty and intimidation provisions, the Information Technology Act on dissemination of explicit material, and POCSO for victims below eighteen regardless of gender.

Can a workplace harassment complaint be pursued criminally under Section 75 BNS even if the Internal Complaints Committee is already inquiring?

Yes. The two tracks are parallel. The Internal Complaints Committee under Section 11 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, conducts a fact-finding civil inquiry; the criminal court under Section 75 BNS adjudicates the same conduct as a criminal offence. The survivor may pursue either or both. The findings of the Committee are not binding on the criminal court, and an acquittal in the criminal court does not by itself displace civil findings of misconduct.