About this topic
Sections 74 to 78 of the B.N.S. sit under the heading "Of criminal force and assault against woman", which also covers Section 79 (word, gesture or act intended to insult the modesty of a woman). Sections 74 to 78 protect a woman against an indecent touch, sexual harassment, being stripped, voyeurism and stalking.
Updated from the lecture: the lecture presented Sections 74 to 78 as the group under the heading "Of criminal force and assault against woman". The correct position is that this heading in Chapter V of the B.N.S. runs from Section 74 to Section 79; Section 79 punishes a word, gesture or act intended to insult the modesty of a woman. Source: India Code: B.N.S..
One idea runs through all five Sections: a woman's body, her privacy and her peace of mind belong to her alone.
Five problem situations
Each of the following situations is answered by one of Sections 74 to 78. Form an opinion on each; the answers are given near the end of these notes.
- The sleeping passenger. On a night bus, a man moves into the seat beside a woman who has fallen asleep and deliberately presses his body against hers. She never wakes up and never learns what happened. Has any offence been committed?
- The appraisal message. A team leader sends a message to a junior colleague saying that her appraisal will depend on whether she spends the weekend with him. There is no touching at all. Is a message alone a crime?
- The woman in the crowd. During a family quarrel in a village, a group of men start tearing at a woman's clothes. An older woman in the crowd keeps shouting at them to strip her completely. The men are clearly liable. Can a woman who never touched the victim be punished?
- The private video. A young woman allowed her fiancé to record a private video. The engagement breaks, and he posts the video in a group chat. She had consented, so where is the offence?
- The tracking application. A man secretly installs an application on his former girlfriend's phone so that he can read her chats and see where she goes. He never follows her on the road. Is that stalking?
Overview of Sections 74 to 78
Five verbs, five Sections
The five Sections can be carried in memory with five verbs: touch, pester, strip, peep and chase.
| Verb | Section | What it deals with |
|---|---|---|
| Touch | Section 74 | An indecent touch: assault or criminal force with intent to outrage a woman's modesty |
| Pester | Section 75 | Sexual harassment, that is, unwelcome sexual pestering |
| Strip | Section 76 | Stripping a woman: assault or criminal force with intent to disrobe |
| Peep | Section 77 | Voyeurism: peeping, recording and sharing |
| Chase | Section 78 | Stalking: chasing a woman, on the street or online |
Memory aid: touch (Section 74), pester (Section 75), strip (Section 76), peep (Section 77) and chase (Section 78).
Two families of offences
| Family | Sections | Basis |
|---|---|---|
| Force family | Sections 74 and 76 | Built on assault or criminal force. Without one of these, they cannot apply. |
| Non-force family | Sections 75, 77 and 78 | Do not depend on assault or criminal force. A message, a hidden camera or a tracking application can be enough. |
Points common to all five Sections
The victim is always a woman
Section 2(35) of the B.N.S. says that "woman" means "a female human being of any age". The words "of any age" matter, because a leading case (State of Punjab v. Major Singh) turns on them.
Definition to memorise: under Section 2(35), "woman" means "a female human being of any age".
Who can be the offender
The offender is not described in the same way in every Section.
| Sections | Opening words | Who can commit the offence |
|---|---|---|
| Sections 74, 76 and 77 | "Whoever" | Any person, including a woman |
| Sections 75 and 78 | "a man" / "Any man" | Only a man |
Frequently asked distinction: the victim under all five Sections is a woman, but only sexual harassment (Section 75) and stalking (Section 78) are confined to a male offender. Outraging modesty (Section 74), disrobing (Section 76) and voyeurism (Section 77) can be committed by a woman as well.
Section 74: Assault or criminal force with intent to outrage modesty
Text of the Section
Marginal heading: "Assault or use of criminal force to woman with intent to outrage her modesty".
"Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which shall not be less than one year but which may extend to five years, and shall also be liable to fine."
- Punishment: imprisonment of either description for not less than 1 year, which may extend to 5 years, and also fine.
- Imprisonment of either description means that the court may choose simple or rigorous imprisonment.
Ingredients
To secure a conviction under Section 74, the prosecution must prove three things:
- The victim is a woman.
- The accused assaulted her or used criminal force on her.
- He acted with the intention of outraging her modesty, or with the knowledge that his act was likely to outrage it.
Think of the three ingredients as three locks on one door. All three must open for an offence under Section 74.
Second ingredient: assault, criminal force and consent
The second ingredient depends on two definitions: criminal force in Section 129 and assault in Section 130 of the B.N.S. (studied in detail separately).
One feature of criminal force is crucial here: it is force used "without that person's consent". Consent can therefore change the whole character of an act.
A dance instructor places a hand on a student's waist to correct her posture, and she has agreed to this kind of guidance. There is force, but there is consent, so the second ingredient is not satisfied.
A stranger in a crowded ticket queue puts his hand on a woman's waist. The movement is the same, but there is no consent and the purpose is plainly sexual. Here every ingredient can be satisfied.
Third ingredient: the meaning of modesty
The real difficulty lies in the third ingredient, because the B.N.S. never defines the word "modesty". The question that arises is whether modesty can exist in a person who has no idea of it.
State of Punjab v. Major Singh (1966), decided by the Supreme Court on 28 April 1966.
Facts: The victim was a baby girl only seven and a half months old. One night the accused entered the room where she was sleeping, switched off the light, and committed an indecent act on her private parts with his finger, causing her an internal injury. He fled when the child's mother came in and switched the light on. He was convicted of voluntarily causing hurt (today Section 115(2) of the B.N.S.). The Sessions Judge, and later two of the three High Court Judges who heard the matter, held that Section 354 of the IPC (the provision on outraging modesty then in force) did not apply. Their reasoning: modesty is a sense of shame linked with an awareness of sex; a baby has no such awareness and cannot feel outraged, so there was no modesty that could be outraged. The State appealed.
Issue: Does a female child of tender age possess a modesty that the law protects?
Held: Yes, by a majority of 2 to 1. The Supreme Court altered the conviction to one under Section 354 IPC and imposed two years of rigorous imprisonment and a fine, part of which was to go to the child as compensation.
Justice Bachawat (majority): "the essence of a woman's modesty is her sex." Young or old, awake or sleeping, a woman possesses a modesty capable of being outraged; even of a baby he said that "from her very birth she possesses the modesty which is the attribute of her sex." He laid down the principle still applied: "The culpable intention of the accused is the crux of the matter. The reaction of the woman is very relevant, but its absence is not always decisive."
Justice Mudholkar (majority): refused to make the woman's individual reaction the test, because it would change from woman to woman. An act done to or in the presence of a woman which is clearly suggestive of sex according to the common notions of mankind falls within the Section.
Chief Justice Sarkar (dissent): also treated the woman's reaction as irrelevant, but felt that no reasonable person would say that a baby of that age had womanly modesty.
Principle: The law looks into the mind of the accused, not the mind of the victim. The culpable intention of the accused is the crux; the absence of a reaction from the woman is not always decisive.
Because the focus is on the mind of the accused, the protection extends to a sleeping woman, an unconscious patient, and a woman whose mental condition prevents her from understanding the act. The same principle governs Section 74 of the B.N.S. today, and it fits the definition of a woman as a female "of any age".
Tarkeshwar Sahu v. State of Bihar (now Jharkhand) (2006), decided by the Supreme Court on 29 September 2006.
Facts: Late one night in 1998, a girl of about twelve stepped out of her house. The accused forcibly lifted her and carried her into his small roadside shop a few feet away. She screamed. Her father and neighbours reached the spot within moments and caught him before anything more could happen. The trial court and the High Court treated this as attempt to rape and sentenced him to seven years of rigorous imprisonment.
Held: The Supreme Court accepted the accused's challenge to the finding of attempt to rape. He had not undressed, he had not asked the girl to undress, and there was no attempt at penetration of even the slightest degree. But he was not acquitted. Applying the IPC, the Court convicted him under Section 366 (abducting the girl with a sexual purpose) with five years of imprisonment, and under Section 354 (outraging her modesty) with two years of rigorous imprisonment, both sentences to run together.
On modesty, the Court said: "Modesty is an attribute associated with female human beings as a class. It is a virtue which attaches to a female owing to her sex." It gave a working test: "The ultimate test for ascertaining whether the modesty of a woman has been outraged, assaulted or insulted is that the action of the offender should be such that it may be perceived as one which is capable of shocking the sense of decency of a woman."
Principle: Modesty belongs to women "as a class". The question is not whether the particular woman is unusually sensitive or unusually bold, but how the act would strike the decency of women generally.
| Offence in Tarkeshwar Sahu | IPC | B.N.S. |
|---|---|---|
| Abduction with a sexual purpose | Section 366 | Section 87 |
| Outraging modesty | Section 354 | Section 74 |
| Attempt to rape | — | Section 64 read with Section 62 |
Test of outraged modesty (Tarkeshwar Sahu): the act of the offender must be capable of being perceived as shocking the sense of decency of a woman, judged by women as a class and not by the sensitivity of the individual victim.
Intention or knowledge
The mental element in Section 74 is satisfied by either intention or knowledge.
A bus brakes suddenly and a passenger is thrown against a woman. There is contact, but neither intention nor knowledge, so there is no offence.
A man in a crowded market pulls away a woman's scarf and later says it was only a joke. Even if he denies any sexual purpose, a court can still find that he knew such an act was likely to outrage her modesty, and knowledge is enough.
Section 76: Assault or criminal force with intent to disrobe
Section 76 is the most aggravated form of the force family.
Text of the Section
Marginal heading: "Assault or use of criminal force to woman with intent to disrobe".
"Whoever assaults or uses criminal force to any woman or abets such act with the intention of disrobing or compelling her to be naked, shall be punished with imprisonment of either description for a term which shall not be less than three years but which may extend to seven years, and shall also be liable to fine."
- Punishment: imprisonment of either description for not less than 3 years, which may extend to 7 years, and also fine.
Features of Section 76
- The abettor is punished alongside the actor. The Section punishes the person who "abets such act" in the same breath as the person who uses force. Abetment means instigating, conspiring or intentionally aiding. The person who shouts encouragement, or hands over a blade to cut the clothing, faces the same punishment as the one who tears the clothes.
- The offender may be a man or a woman. Because the Section begins with "Whoever", it does not matter whether the abettor is a man or a woman.
- A minimum sentence. Most Sections fix only how high the sentence may go. Here, as in Section 74, Parliament has also fixed how low it may not go. The floor is 3 years.
Sexual harassment: from Vishaka to the B.N.S.
Sexual harassment, the first member of the non-force family, has an unusual history: the Supreme Court defined it before any statute did.
Vishaka v. State of Rajasthan (1997), decided by the Supreme Court on 13 August 1997.
Facts: A woman social worker in Rajasthan, who had tried to stop a child marriage in her village, was allegedly gang raped. Social activists and NGOs approached the Supreme Court directly under Article 32 through a class action. They argued that sexual harassment at work violates the fundamental rights of working women: equality under Articles 14 and 15, the freedom to practise any profession under Article 19(1)(g), and the right to life and personal liberty under Article 21. The real problem was a legal vacuum: no Indian statute specifically addressed sexual harassment at the workplace.
Issue: Could the Court fill that vacuum?
Held: Yes. A bench led by Chief Justice J. S. Verma read the fundamental rights in the light of international law, particularly the Convention on the Elimination of All Forms of Discrimination against Women. Where domestic law is silent, international conventions in harmony with fundamental rights may be read into them. The Court framed binding guidelines, now called the Vishaka guidelines, to be treated as law declared under Article 141 until Parliament acted.
The guidelines described sexual harassment as unwelcome sexually determined behaviour, whether directly or by implication, such as:
- physical contact and advances;
- a demand or request for sexual favours;
- sexually coloured remarks;
- showing pornography;
- any other unwelcome physical, verbal or non-verbal conduct of a sexual nature.
They also required a complaints committee headed by a woman, with at least half of its members women.
Principle: Where domestic law is silent, international conventions consistent with fundamental rights may be read into them, and the Supreme Court may frame binding guidelines under Article 141 until the legislature acts.
Parliament's response in 2013
Parliament responded in two ways, both in 2013:
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act gave workplaces a complaint mechanism through an Internal Complaints Committee.
- The Criminal Law Amendment Act made sexual harassment a crime. That offence is now Section 75 of the B.N.S.
A working woman today has two separate routes: one inside her workplace (the complaint mechanism under the workplace law) and one through the criminal courts (Section 75 of the B.N.S.). She may use either or both.
Section 75: Sexual harassment
Section 75(1): the offence
Section 75(1) begins: "A man committing any of the following acts" and lists four clauses:
- Clause (i): "physical contact and advances involving unwelcome and explicit sexual overtures; or"
- Clause (ii): "a demand or request for sexual favours; or"
- Clause (iii): "showing pornography against the will of a woman; or"
- Clause (iv): "making sexually coloured remarks"
The sub-section ends: "shall be guilty of the offence of sexual harassment."
Scope
- The Vishaka list lives on inside Section 75.
- Section 75 is not limited to offices. It applies equally in a college corridor, a shop or a train.
- Only a man can commit this offence ("A man committing").
Illustrations of each clause
| Clause | Act | Illustration |
|---|---|---|
| (i) | Physical contact and advances with unwelcome and explicit sexual overtures | A manager keeps holding a junior's hand and suggesting a hotel room after she has refused. |
| (ii) | Demand or request for sexual favours | The team leader in the appraisal-message problem. A demand or request is enough, even without a touch. |
| (iii) | Showing pornography against her will | A classmate turns his laptop towards a woman to make her watch an explicit clip, though she objects. |
| (iv) | Sexually coloured remarks | A man comments on a colleague's body in sexual terms. |
Punishment: Section 75(2) and 75(3)
The punishment is graded.
Section 75(2): "Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both."
Section 75(3): "Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both."
| Clauses | Imprisonment | Fine |
|---|---|---|
| Clauses (i), (ii) and (iii) | Rigorous imprisonment up to 3 years | Or fine, or both |
| Clause (iv): sexually coloured remarks | Imprisonment of either description up to 1 year | Or fine, or both |
Remarks, being words alone, carry the lightest sentence. Under Section 75 a fine alone is a possible outcome, which is never the case under Sections 74 and 76.
Section 77: Voyeurism
The second member of the non-force family protects a woman's privacy.
Text of the Section
Marginal heading: "Voyeurism".
"Whoever watches, or captures the image of a woman engaging in a private act in circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at the behest of the perpetrator or disseminates such image shall be punished on first conviction with imprisonment of either description for a term which shall not be less than one year, but which may extend to three years, and shall also be liable to fine, and be punished on a second or subsequent conviction, with imprisonment of either description for a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine."
Three acts and one central question
The Section catches three acts:
- Watching a woman engaging in a private act;
- Capturing the image of a woman engaging in a private act;
- Disseminating, that is, spreading or sharing, such an image.
The central question: did the woman reasonably expect that no one was watching her, neither the offender nor anyone acting at his behest (on his request or instruction)?
Explanation 1: what is a "private act"
"For the purposes of this section, 'private act' includes an act of watching carried out in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a kind ordinarily done in public."
A private act therefore includes watching in a place reasonably 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
- the victim is doing a sexual act that is not of a kind ordinarily done in public.
A camera hidden inside the smoke detector of a rented room, or a phone held over the wall of a changing cubicle at a swimming pool, is a textbook case of voyeurism.
By contrast, a photograph of a fully dressed woman walking on a public road is not voyeurism under this Section, because neither the place nor the act carries that expectation of privacy, though other provisions may still apply.
Explanation 2: consent to capture is not consent to share
"Where the victim consents to the capture of the images or any act, but not to their dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under this section."
Permission to record is not permission to share. Where a woman consented to the capture of images but not to their dissemination to third persons, the act of sharing is itself voyeurism under Explanation 2 to Section 77.
Punishment
| Conviction | Imprisonment of either description | Fine |
|---|---|---|
| First conviction | Not less than 1 year, may extend to 3 years | Also liable to fine |
| Second or subsequent conviction | Not less than 3 years, may extend to 7 years | Also liable to fine |
Section 78: Stalking
Stalking is the last member of the non-force family.
Section 78(1): the offence
Section 78(1) begins: "Any man who"
- Clause (i): "follows a woman and contacts, or attempts to contact such woman to foster personal interaction repeatedly despite a clear indication of disinterest by such woman; or"
- Clause (ii): "monitors the use by a woman of the internet, e-mail or any other form of electronic communication"
and ends: "commits the offence of stalking". Only a man can commit this offence.
Clause (i): physical stalking
Three ideas must come together:
- Following the woman;
- Contact, or an attempt at contact, to foster personal interaction;
- Repetition despite a clear indication of disinterest by her.
One invitation for coffee, politely refused and never repeated, is not stalking.
A man who appears outside a woman's coaching centre, her gym and her bus stop every day after she has told him to stop, and keeps trying to talk to her, fits clause (i) exactly.
Clause (ii): electronic stalking
Physical following is not needed at all. Monitoring a woman's use of the internet, e-mail or any other form of electronic communication is enough.
The proviso: when following or monitoring is not stalking
Because watching and following are sometimes legitimate, the Section adds a proviso: "Provided that such conduct shall not amount to stalking if the man who pursued it proves that"
- "it was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the responsibility of prevention and detection of crime by the State; or"
- "it was pursued under any law or to comply with any condition or requirement imposed by any person under any law; or"
- "in the particular circumstances such conduct was reasonable and justified."
Note the word "proves". The burden of bringing himself within an exception in the proviso to Section 78(1) lies on the accused.
First exception (prevention or detection of crime): a narcotics officer, assigned by the State, who shadows a woman suspected of carrying drugs.
Second exception (under any law): an official who monitors a woman's e-mail under a lawful interception order issued under the Information Technology Act.
Third exception (reasonable and justified): a safety valve decided on the facts. A son who, on a doctor's advice, tracks the phone location of his elderly mother who has dementia and keeps wandering from home could fairly argue that his conduct was reasonable and justified.
Section 78(2): punishment
"Whoever commits the offence of stalking shall be punished on first conviction with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine; and be punished on a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine."
| Conviction | Imprisonment of either description | Fine |
|---|---|---|
| First conviction | May extend to 3 years | Also liable to fine |
| Second or subsequent conviction | May extend to 5 years | Also liable to fine |
Punishments at a glance: floors and ceilings
Think of sentences as floors (minimums) and ceilings (maximums).
| Section | Offence | Floor (minimum) | Ceiling (maximum) | Fine |
|---|---|---|---|---|
| Section 74 | Outraging modesty | 1 year | 5 years | In addition to imprisonment |
| Section 75(2) | Sexual harassment, clauses (i) to (iii) | None | 3 years (rigorous) | Or fine, or both |
| Section 75(3) | Sexual harassment, clause (iv) | None | 1 year | Or fine, or both |
| Section 76 | Disrobing | 3 years | 7 years | In addition to imprisonment |
| Section 77 | Voyeurism, first conviction | 1 year | 3 years | In addition to imprisonment |
| Section 77 | Voyeurism, second or subsequent conviction | 3 years | 7 years | In addition to imprisonment |
| Section 78 | Stalking, first conviction | None | 3 years | In addition to imprisonment |
| Section 78 | Stalking, second or subsequent conviction | None | 5 years | In addition to imprisonment |
Sections 74, 76 and 77 have both a floor and a ceiling: 1 to 5 years, 3 to 7 years, and for voyeurism 1 to 3 years, rising to 3 to 7 years for a repeat offender. Sections 75 and 78 have only ceilings. A fine can stand alone only under Section 75; in the other four Sections it comes on top of imprisonment.
Solving the five problems
| Problem | Provision | Reasoning |
|---|---|---|
| 1. The sleeping passenger | Section 74 | The woman never knew what happened, but Major Singh teaches that the intention of the accused is the crux, and the absence of her reaction is not decisive. |
| 2. The appraisal message | Section 75(1), clause (ii) | The message is a demand or request for sexual favours; no touch is needed. The junior colleague may also use the complaint mechanism under the workplace law. |
| 3. The woman in the crowd | Section 76 | The woman who shouted to strip the victim abetted the act. Since Section 76 begins with "Whoever", she faces the same minimum of 3 years. |
| 4. The private video | Section 77, Explanation 2 | Consent to recording did not include consent to sharing, so posting the video is an offence. |
| 5. The tracking application | Section 78(1), clause (ii) | Monitoring a woman's electronic communication is stalking, even though he never followed her on the road. |
Quick revision
- Five verbs, five Sections: touch (74), pester (75), strip (76), peep (77) and chase (78).
- Force family: Sections 74 and 76 need assault or criminal force. Non-force family: Sections 75, 77 and 78 do not.
- The victim is always a woman, meaning "a female human being of any age" under Section 2(35).
- Sections 74, 76 and 77 begin with "Whoever" (any person, including a woman); Sections 75 and 78 apply only to "a man".
- Section 74 has three ingredients: a woman, assault or criminal force, and intention or knowledge of outraging her modesty.
- Major Singh: the culpable intention of the accused is the crux; the woman's reaction is relevant but its absence is not always decisive. Even a baby possesses modesty.
- Tarkeshwar Sahu: modesty attaches to women as a class; the test is whether the act is capable of shocking the sense of decency of a woman.
- Section 76 punishes the abettor equally, with a minimum of 3 years.
- Vishaka filled the legal vacuum on workplace sexual harassment; in 2013 Parliament enacted the workplace law and the Criminal Law Amendment Act. Section 75 now lists four clauses of sexual harassment.
- Section 77: watching, capturing or disseminating images of a private act; permission to record is not permission to share (Explanation 2).
- Section 78: physical stalking (clause (i)) and electronic stalking (clause (ii)); the accused must prove any exception in the proviso.
- Floors and ceilings: Sections 74, 76 and 77 have both; Sections 75 and 78 have only ceilings. A fine can stand alone only under Section 75.
- One idea behind all five Sections: a woman's body, her privacy and her peace of mind belong to her alone.
