1. BNS Section 75 Sexual Harassment Law: Criminal Liability Beyond POSH and HEI Frameworks
2. POSH vs BNS Section 75: Key Legal and Consequence Differences in Sexual Harassment Cases
3. Criminal Exposure in Sexual Harassment Cases: When BNS, POSH, HEI and POCSO Apply Together
BNS Section 75 Sexual Harassment Law: Criminal Liability Beyond POSH and HEI Frameworks
When we talk about sexual harassment at the workplace or in educational institutions, the conversation often begins with POSH policies or HEI regulations. But that’s only part of the picture. Section 75 of the Bharatiya Nyaya Sanhita (BNS) (Earlier Section 354A of Indian Penal Code) brings sexual harassment firmly into the realm of criminal law and it applies to any person, anywhere in India, regardless of whether the incident occurred at a workplace, college, public place, or online.
Unlike POSH or HEI Regulations, which focus on internal complaints, inquiries, and corrective action, BNS Section 75 looks directly at the individual’s conduct. Any woman who faces unwelcome sexual conduct such as unwelcome physical contact or advances, demands for sexual favours, showing pornography, or sexually coloured remarks can approach the police directly. Depending on the nature of the act, the law prescribes imprisonment of up to three years, a fine, or both.
For leaders and managers, this shifts the way sexual harassment complaints must be handled. What may start as an internal complaint under POSH or HEI does not always stay there. In many cases, the same facts can trigger criminal action under BNS Section 75 at the same time. Organisations cannot close a matter internally to avoid legal consequences, nor can Internal Committees replace the role of the criminal justice system.
| BASIS | POSH | POCSO | HEI | BNS |
|---|---|---|---|---|
| Who is Protected? | Applicable only for women | Any child below 18 Years of age. (Gender Neutral) | Students and women employees | Any person (Gender Neutral) |
| Gender | Women centric | Gender Neutral – applies to boys and girls | Gender neutral for students, women centric for employees | Gender Neutral |
| Nature | Civil Law | Criminal Law | Civil Law | Criminal Law |
| Application | Workplace and workplace related duties | Everywhere | Campus, hostels and academic linked activities | All public and private places |
| Purpose | Prevent and address sexual harassment of women at workplace | Protect children from sexual abuse | Ensure campus safety and institutional accountability | Punish sexual harassment as a criminal offence |
| Burden of Proof | Burden is on complainant to establish their case (Preponderance of probabilities – Civil Case) | Burden is on the accused to prove his innocence (Reverse Onus) | Burden on complainant (Preponderance of probabilities – Civil) | Burden on prosecution (Accused presumed innocent) |
| Filing of Complaint | Victim/ If victim cannot then third party can file | Anyone can file for complaint | Victim or third party if victim is unable | Victim can file the complaint |
| Complaint Redressal | Inquiry by Internal Committee (IC) (As per service rules) (IC) | Report to Police FIR Action by Court | Inquiry by Internal Committee (UGC norms) | Police FIR & Court action |
| Limitation | Within 3 months from the date of event (extendable by another 3 months) | No limitation | Within 3 months of incident | 3 years |
| Consequences | Disciplinary action, termination, compensation | Imprisonment (can extend to life) and/or fine | Suspension, rustication, termination | Imprisonment and/or fine as decided by Court |
| Explore our Courses | POCSO | POSH for HEI | POSH for IC Members |
POSH Is Not the Only Law: What Institutions and Leaders Must Know
To understand how POSH law and POCSO apply to Higher Educational Institutions, and how this compares with HEI-specific requirements under UGC Regulations, click Know more
HEI Regulations, 2015 (UGC): Does this law apply to you?
To Know more about an Act that focuses on ensuring campus safety and institutional accountability for students and women employees in educational institutions. click Know more
For example, if a supervisor repeatedly makes sexually suggestive comments to a colleague during meetings, the affected person may pursue an internal complaint under POSH while the same conduct can also be reported to the police under BNS Section 75, exposing the individual to criminal prosecution.
From a legal framework perspective, BNS Section 75 operates independently of institutional complaint mechanisms. The existence of an internal complaint process under POSH or HEI Regulations does not restrict an affected person from directly initiating criminal proceedings if the conduct satisfies the ingredients of sexual harassment under criminal law. Courts have consistently treated workplace harassment and criminal liability as parallel but separate legal pathways.
POSH vs BNS Section 75: Key Legal and Consequence Differences in Sexual Harassment Cases
For professionals, the key operational difference lies in the nature of consequences. POSH and HEI frameworks primarily lead to disciplinary outcomes such as warnings, suspension, termination, or academic action. BNS provisions, however, expose the accused individual to arrest, criminal prosecution, and penal consequences including imprisonment and fine. This difference is critical when organisations are deciding response strategy, legal escalation, and documentation practices.
Another important legal distinction is evidentiary approach. Internal inquiries under POSH or HEI generally operate on the principle of balance of probabilities. Criminal proceedings under BNS require investigation standards under criminal procedure, including evidence collection, witness statements, and prosecution before a criminal court. Professionals must therefore avoid assuming that internal closure automatically removes criminal exposure.
From a jurisdiction perspective, POSH and HEI are relationship-based laws. They apply because of workplace or institutional connection. BNS, on the other hand, is conduct-based. If the act itself qualifies as sexual harassment under criminal law, location or professional relationship becomes secondary. This is why BNS applies equally to workplace interactions, educational settings, conferences, off-site professional events, or digital communication linked to professional interaction.
The interaction between BNS and POCSO is determined primarily by age. Where the victim is below 18 years, POCSO becomes the primary criminal statute. In such situations, reporting obligations become mandatory and immediate. BNS provisions may still apply depending on the nature of conduct, but POCSO takes precedence because it is a special law designed specifically for child protection. Professionals working in institutions involving minors must therefore prioritise POCSO reporting obligations over internal institutional processes.
Criminal Exposure in Sexual Harassment Cases: When BNS, POSH, HEI and POCSO Apply Together
Another practical area professionals must consider is concurrent legal exposure. A single incident may simultaneously trigger:
- Internal disciplinary proceedings (POSH or HEI)
- Criminal complaint under BNS
- Additional criminal charges depending on conduct severity
- POCSO if the victim is a minor
From a compliance standpoint, this means incident response protocols must be designed to handle multi-law exposure rather than single-law analysis.
In academic institutions, the HEI Regulations primarily strengthen internal governance obligations. However, they do not create immunity from criminal law. For example, if harassment occurs within research supervision, faculty interaction, or campus environment, HEI mechanisms may govern institutional inquiry. But if conduct includes explicit sexual advances, coercive demands, or repeated sexually coloured conduct, criminal liability under BNS can still arise independently.
Digital conduct is another area where professionals must align internal and criminal law risk understanding. Unwelcome sexual communication through email, messaging platforms, or digital collaboration tools can simultaneously trigger POSH or HEI complaints and criminal exposure depending on content, repetition, and context. Courts increasingly treat digital communication as primary evidence in harassment matters.
From a professional governance perspective, the most legally relevant takeaway is recognising trigger thresholds. Not every inappropriate interaction automatically becomes criminal harassment. However, repeated unwelcome sexual conduct, coercion linked to professional or academic benefit, explicit sexual content sharing, or physical advances significantly increase criminal exposure risk.
From an institutional risk perspective, documentation consistency becomes critical. Differences between internal inquiry findings and criminal investigation records can create legal complexity. Organisations must therefore ensure structured documentation, evidence preservation, and legally reviewed communication during complaint handling.
In multi-law environments like India, professionals must move from policy-based compliance thinking to legal exposure mapping. Understanding which law applies depends on three primary factors: nature of conduct, relationship context, and age of the affected person. BNS provisions remain relevant whenever conduct crosses criminal sexual harassment thresholds regardless of institutional framework presence.
In simple terms, BNS Section 75 makes one thing clear: sexual harassment isn’t only about policy violations or workplace discipline it’s a criminal offence with real legal consequences. Understanding this helps organisations respond correctly, protect affected individuals, and avoid serious legal and reputational risks.
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