Sexual Harassment, Stalking and Voyeurism Under the BNS

Since 1 July 2024, sexual harassment, voyeurism and stalking are punished under Sections 75, 77 and 78 of the Bharatiya Nyaya Sanhita, 2023 (BNS), which took the place of Sections 354A, 354C and 354D of the IPC. The wording of the offences is largely carried over from the IPC, so the definitions you may already know still apply, but you must cite the new section numbers. Two related offences sit next to them: Section 74 (assault to outrage modesty, old 354) and Section 79 (word, gesture or act to insult modesty, old 509).

This explainer is for B.A. LL.B. and LL.B. students preparing for criminal law papers, and for any reader who wants to know what the law actually says. A college student in Nagercoil who is followed home every evening, or a tenant in Madurai who finds a hidden camera in a bathroom, should know which provision applies and what it requires the prosecution to prove.

Where do these offences sit in the BNS?

They fall in the chapter on offences against woman and child, in a short cluster of sections. The Uttar Pradesh Police comparative table of BNS and IPC sections maps them as follows:

• Section 74 BNS (old 354 IPC): assault or criminal force to a woman with intent to outrage her modesty.
• Section 75 BNS (old 354A IPC): sexual harassment.
• Section 76 BNS (old 354B IPC): assault or criminal force with intent to disrobe.
• Section 77 BNS (old 354C IPC): voyeurism.
• Section 78 BNS (old 354D IPC): stalking.
• Section 79 BNS (old 509 IPC): word, gesture or act intended to insult the modesty of a woman.

The same table marks Sections 76 and 77 as changed from the IPC versions and the others as unchanged. One visible change in Section 77 is that it opens with "Whoever", where the old 354C began with "Any man". Sections 75 and 78, by contrast, still begin with "Any man". For completeness: Section 74 carries one to five years with fine, Section 76 carries three to seven years with fine, and Section 79 carries simple imprisonment up to three years with fine.

What counts as sexual harassment under Section 75?

Section 75(1) says that a man who commits any of the following acts is guilty of sexual harassment:

1. physical contact and advances involving unwelcome and explicit sexual overtures;
2. a demand or request for sexual favours;
3. showing pornography against the will of a woman;
4. making sexually coloured remarks.

The punishment is graded. For clauses (i), (ii) and (iii), Section 75(2) provides rigorous imprisonment up to three years, or fine, or both. For sexually coloured remarks under clause (iv), Section 75(3) provides imprisonment of either description up to one year, or fine, or both. Note that the offender here is "a man", so Section 75 is gender specific in the person who can commit it.

What does Section 77 say about voyeurism?

Voyeurism covers three acts: watching, capturing the image of, or disseminating the image of a woman engaging in a private act, in circumstances where she would usually expect not to be observed by the perpetrator or by anyone at his behest. The punishment on first conviction is imprisonment of not less than one year, extending to three years, with fine. On a second or subsequent conviction it is not less than three years, extending to seven years, with fine.

Two Explanations do much of the work:

• Explanation 1 defines a "private act" to include an act of watching carried out in a place that would reasonably be expected to provide privacy, where the victim's genitals, posterior or breasts are exposed or covered only in underwear, or the victim is using a lavatory, or is doing a sexual act not ordinarily done in public.
• Explanation 2 says that if the victim consents to the capture of the images but not to their dissemination to third persons, the dissemination is still an offence under this section.

Explanation 2 matters a great deal for students. Sharing a private photo after a breakup is voyeurism even though the photo was taken with consent. The same facts may also attract Section 66E (violation of privacy, up to three years or fine up to two lakh rupees) and Section 67A (sexually explicit material, up to five years and fine up to ten lakh rupees on first conviction) of the Information Technology Act, 2000.

When does following or monitoring become stalking under Section 78?

A man commits stalking if he:

• follows a woman and contacts, or attempts to contact, her to foster personal interaction repeatedly despite a clear indication of disinterest by her; or
• monitors her use of the internet, email or any other form of electronic communication.

The conduct is not stalking if the man proves that it was pursued for preventing or detecting crime and he was entrusted with that responsibility by the State, that it was pursued under any law or to comply with a condition imposed under any law, or that in the particular circumstances it was reasonable and justified. The burden of proving these exceptions is on him. The punishment is imprisonment of either description up to three years with fine on first conviction, and up to five years with fine on a second or subsequent conviction.

The key phrase is "clear indication of disinterest". In the Nagercoil example, once the student has told the man to stop, or blocked his number, repeated attempts to contact her move squarely into Section 78.

How have the courts shaped this area?

The starting point is Vishaka v. State of Rajasthan, decided by the Supreme Court on 13 August 1997 and reported as (1997) 6 SCC 241. With no statute on sexual harassment at the workplace, a Bench of Verma CJI, Sujata V. Manohar J. and B.N. Kirpal J. drew on Articles 14, 15, 19(1)(g) and 21 and on CEDAW to frame binding guidelines. Its definition of sexual harassment (physical contact and advances, a demand or request for sexual favours, sexually coloured remarks, showing pornography) is almost word for word the list now found in Section 75(1). The Court also required employers to set up a complaints committee headed by a woman. That civil, workplace side of the law is now governed by separate legislation, while Section 75 BNS deals with criminal liability.

I have not been able to verify a leading Madras High Court ruling on Sections 75, 77 or 78 of the BNS for this article. Rather than cite a case I cannot confirm, I suggest students search the Madras High Court judgments portal using the section numbers and the old IPC numbers (354A, 354C, 354D).

How should you write about this in an exam?

1. Name the offence and cite the BNS section first, with the old IPC section in brackets as a pointer.
2. Break the definition into ingredients. For stalking: a man, following or contacting, repetition, clear indication of disinterest, or electronic monitoring.
3. Deal with any exception or Explanation that fits the facts, such as Explanation 2 to Section 77 for consensual images later shared.
4. State the punishment, including the higher range on repeat conviction where the section provides one.
5. Note overlapping laws, such as Sections 66E and 67A of the IT Act, and the workplace remedy that grew out of Vishaka.

Whether each offence is cognizable or bailable is set out in the First Schedule to the Bharatiya Nagarik Suraksha Sanhita, 2023. Check the current schedule rather than relying on old IPC classifications. Students who want to see how such complaints are handled in practice can volunteer with the college legal aid clinic.

Sources

• The Bharatiya Nyaya Sanhita, 2023 (PRS Legislative Research copy): full text of Sections 74 to 79.
• India Code: Bharatiya Nyaya Sanhita, 2023: official record of the Act, in force from 1 July 2024.
• Uttar Pradesh Police BNS and IPC comparative table: maps old IPC sections to new BNS sections.
• Vishaka v. State of Rajasthan (1997): Supreme Court judgment on sexual harassment at the workplace.
• Information Technology Act, 2000 (PRS copy): text of Sections 66E and 67A.