Bharatiya Nyaya Sanhita and Sexual Harassment at Workplace

The Bharatiya Nyaya Sanhita (BNS) has arrived and is applicable as of 1 July 2024, bringing significant changes to India’s criminal justice system.

What does this mean for Corporate India and the issue of workplace sexual harassment against women? While the PoSH Act appears unaffected by these new laws, the changes have elicited mixed reactions. As we move forward, we can only wait and see how these developments will be implemented and their potential impact.

What Happens to Transgender people and Men if they are Sexually violated?

Let’s first understand the broader context of sexual harassment laws before delving into specific corporate requirements. Notably, the provisions of IPC Section 377 are absent from the new Bharatiya Nyaya Sanhita (BNS). This section previously provided some level of protection to men and transgender individuals assigned male at birth, enabling them to seek redress within the criminal justice system. However, BNS maintains the right of individuals to defend themselves, even to the extent of causing the aggressor’s death. Additionally, IPC Section 377 covered aspects of bestiality, which the new law does not address.

Unnatural Sexual Offences: The BNS removed Section 377 of the Indian Penal Code, which made homosexuality and other “unnatural” sexual practices illegal. Nonetheless, since Section 377 is still useful in addressing non-consensual sexual acts—especially in light of the gendered nature of rape laws—its complete removal has sparked concerns. In 2018, the Supreme Court declared the clause unlawful solely because it made homosexual relationships consensually illegal.

Kelp Analysis and Observations on Sexual offences Against Women

The new law still does not talk about Marital Rape which overrides the agency of a married woman to give consent to any individual. This was expected in the new law as the mere fact of being married should not be the reason for someone to override consent. The IPC was made in a different era and hence did not cover cases of marital rape. It is disappointing to see that the marital rape as an offence has not made it to the new criminal laws as well.

The age of marriage and consent have been made uniform which was not so in the previous Indian Penal Code. Rape of a girl, below 18 years of age, is a crime. Irrespective of her marital status and relationship with the accused. This is a good thing and the definition of child is uniform in the entire act.

Interestingly the Clause 69 of the BNS2 talks about Sexual Harassment in the guise of a promise of marriage or employment. The nature of such a crime is largely on cheating because the sexual intercourse followed a false promise is usually covered under old act as a cheating and fraud. This means that IPC understood the agency of women to give consent and when someone backs off on their offer to provide employment especially after having intercourse in a Quid Pro Quo dynamic, it would be covered under cheating.

This change in law does impact the Quid Pro Quo scenarios that we saw at workplaces. Under the new provisions, if someone engages in intercourse or lures another person for sexual favors under the pretense of employment, this act is now criminalized and equated with rape. While this aims to provide stronger protection, it also raises concerns since such offenses have traditionally been treated as civil issues rather than criminal ones. In instances where a complaint of this nature is brought before the Internal Complaints Committee (ICC) under PoSH, the committee can proceed with their inquiry but must encourage the complainant to file an FIR with the police for the criminal justice process to take effect. This approach implies that women are passive victims being exploited under false pretenses, potentially undermining their autonomy and ability to consent to sexual activities.

Incorporation of Recommendations in BNS2

Rape (IPC s.375): Rape should not be limited to penetration of the vagina, mouth or anus. Any non-consensual penetration of a sexual nature should be included in the definition of rape. Exception to marital rape should be removed.

As per BNS2: No. Original provision retained in Clause 63.

Words, gesture, or act intended to insult modesty of woman (IPC s.509): The section should be repealed. The offence of ‘eve-teasing’ can be charged under s.354 of the IPC (s.73). Remove the terminology ‘modesty of women’ from the IPC.

As per BNS2: No. Original provision retained in Clause 79.

Assault or use of criminal force on woman with intent to disrobe (IPC s.354B): Penalty should be increased to imprisonment for at least five years up to 10 years.

As per BNS2: No. Penalty is imprisonment for at least three years up to seven years (Clause 76). 

Adultery (IPC s.497): The section violates Articles 14 and 21. It creates a distinction between men and women based on gender stereotypes, and is arbitrary. Adultery should not be treated as an offence as it violates the right to privacy.

As per BNS2: Yes. Adultery has been omitted. However, BNS2 retains s.498 of the IPC (Clause 84) which penalises a man for enticing the wife of another man so that she may have intercourse with any person.

Kelp Recommendations for Workplaces

1) Keep a Gender-Neutral PoSH policy in place. Include all genders to have a safe and sexual harassment free workplace. Men and Transgender people who don’t fall under the purview of PoSH Act should be treated within the same policy as Aggrieved Persons and the remedy should be provided as a misconduct hearing by following same procedure of enquiry as PoSH.

2) Maintain a Relationship policy which allows for people to declare their relationships at workplace with confidentiality. Married couples will also have to declare their relationships at workplace. This allows no room for bias and safeguards against any harassment that individuals may go through at workplaces.

3) In case of deceitful promises by your employees in the name of quid pro quo of Sexual Harassment, make reporting mechanism available under PoSH also for workplace remedies.

For more information on decoding the BNS and its implications on the PoSH Act, get in touch with our Centre of Excellence at info@kelphr.com, call +91-9500129652, visit www.kelphr.com

About Kelp

Established in 2013, Kelp’s mission is to deliver the best HR solutions to businesses and enhance workplace environments across industries. Over the past decade, we have served over 800 clients in India and internationally, focusing on PoSH (prevention of sexual harassment at the workplace), D, E & I (Diversity, Equity & Inclusion), and  Mental Wellness offerings. While our services span various areas, our core goal remains consistent: to foster safer, more inclusive, and productive workplaces.

For inquiries about our services related to Prevention of Sexual Harassment (PoSH), Diversity, Equity, and Inclusion (D,E &I), Mental Wellness, please reach out to us at info@kelphr.com or call +91-95001-29652. Our advisors will tailor customized offerings to suit your organization’s needs.