Assault on a Woman, Sexual Harassment, Voyeurism and Stalking
Chapter Sixteen
Syllabus topic 1, "Offences under Indian Penal Code"
Pages 71 to 75 of 802
In one line
Six sections punish sexual wrongs short of rape, running from a physical assault meant to outrage a woman's modesty, through harassment, disrobing, watching, and following, down to an insulting word.
In the wording a student can write in an exam: sections 74 to 79 of the Bharatiya Nyaya Sanhita, 2023 punish assault or criminal force to a woman with intent to outrage her modesty, sexual harassment, assault with intent to disrobe, voyeurism, stalking, and word, gesture or act intended to insult her modesty.
Why a graded set of offences
Sexual wrongdoing is not one thing. Between an unwanted remark and rape lies a great deal of conduct, and a statute with only the extreme offence leaves the rest to be squeezed into assault or public nuisance, which fits badly and punishes lightly.
Most of this group entered the law in 2013. Sections 75, 76, 77 and 78 correspond to provisions inserted into the Penal Code by the criminal law amendment of that year, which followed the Verma Committee. Sections 74 and 79 are much older, carried from sections 354 and 509 of the Penal Code.
The graded punishments are the point. They run from one year for an insulting word, through three and five years, to seven years for disrobing.
The provisions themselves
Section 74, outraging 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, is punished with imprisonment of not less than one year extending to five years, and fine.
Section 75, sexual harassment. A man commits the offence by any of four acts: (i) physical contact and advances involving unwelcome and explicit sexual overtures; (ii) a demand or request for sexual favours; (iii) showing pornography against the will of a woman; or (iv) making sexually coloured remarks. The first three carry rigorous imprisonment which may extend to three years, or fine, or both, under sub-section (2). The fourth carries imprisonment which may extend to one year, or fine, or both, under sub-section (3).
Section 76, disrobing. Whoever assaults or uses criminal force to any woman, or abets such an act, with the intention of disrobing or compelling her to be naked, is punished with imprisonment of not less than three years extending to seven years, and fine.
Section 77, 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 his behest, or disseminates such an image, is punished on a first conviction with imprisonment of not less than one year extending to three years and fine, and on a second or subsequent conviction with not less than three years extending to seven years and fine.
Assault on a Woman, Sexual Harassment, Voyeurism and Stalking
Explanation 1 to section 77 defines "private act" as including 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.
Explanation 2 to section 77 provides that where the victim consents to the capture of the images or the act, but not to their dissemination to third persons, and they are disseminated, that dissemination is an offence under the section.
Section 78, stalking. A man commits stalking if he (i) follows a woman and contacts, or attempts to contact, her to foster personal interaction repeatedly despite a clear indication of disinterest, or (ii) monitors her use of the internet, e-mail or any other form of electronic communication. The proviso excepts conduct pursued for preventing or detecting crime by a man entrusted with that responsibility by the State; pursued under any law or to comply with a condition or requirement imposed under any law; or which in the particular circumstances was reasonable and justified. The punishment is up to three years and fine on a first conviction, and up to five years and fine on a second or subsequent conviction.
Section 79, insulting modesty. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object in any form, intending that it shall be heard or seen by her, or intrudes upon her privacy, is punished with simple imprisonment which may extend to three years, and also with fine.
Broken down: what "modesty" means, and why it matters
Modesty is not defined in the Sanhita. Sections 74 and 79 both use it and neither says what it is.
The courts have treated it as the sense of feminine decency and dignity that attaches to a woman as a woman. The test is objective: whether the act was capable of shocking that sense, not whether the particular woman felt shocked.
The age of the woman is irrelevant. A woman of any age, including an infant, has modesty capable of being outraged, because the quality attaches to her sex rather than to her awareness of it.
Section 74 needs an assault or criminal force; section 79 does not. That is the practical difference between them. A word or a gesture at a distance is section 79; a touch is section 74.
Assault on a Woman, Sexual Harassment, Voyeurism and Stalking
Distinctions that carry marks
| Section 74 | Section 79 | |
|---|---|---|
| Conduct | Assault or criminal force | Word, sound, gesture, exhibition of an object, or intrusion on privacy |
| Mental element | Intent to outrage modesty, or knowledge that it is likely | Intent to insult modesty |
| Punishment | One to five years and fine | Simple imprisonment up to three years and fine |
| Section 75(1)(i) to (iii) | Section 75(1)(iv) | |
|---|---|---|
| Conduct | Unwelcome physical contact and explicit sexual overtures; demand or request for sexual favours; showing pornography against her will | Sexually coloured remarks |
| Punishment | Rigorous imprisonment up to three years, or fine, or both | Imprisonment up to one year, or fine, or both |
| Section 77, voyeurism | Section 78, stalking | |
|---|---|---|
| The wrong | Watching, capturing or disseminating an image of a private act | Following and contacting despite disinterest, or monitoring electronic communication |
| Defences on the face of the section | None | Three, in the proviso: crime prevention by a person entrusted by the State; action under law; conduct reasonable and justified in the circumstances |
| Second conviction | Three to seven years | Up to five years |
A worked example
Anjali works in an office in Andheri. Her manager repeatedly asks her to have dinner with him, and when she refuses he begins commenting on her clothes in front of colleagues.
Which offence? The requests, if they are a demand or request for sexual favours, are section 75(1)(ii), punishable under sub-section (2) with rigorous imprisonment up to three years. The comments, if sexually coloured remarks, are section 75(1)(iv), punishable under sub-section (3) with up to one year. The two are separately graded, and the difference in punishment is a common examination point.
He then follows her to the railway station on four consecutive evenings and messages her after she has told him to stop. That is section 78(1)(i): following and repeatedly attempting to contact her to foster personal interaction despite a clear indication of disinterest. The first conviction carries up to three years.
He installs software to read her office e-mail. That is section 78(1)(ii), monitoring her use of e-mail, and it is stalking whether or not he ever follows her.
Can he say the monitoring was reasonable? The proviso allows it where the conduct was pursued under any law or to comply with a requirement imposed under any law, or where in the particular circumstances it was reasonable and justified. A manager's curiosity is neither. An employer's lawful audit of a company system by a person authorised to conduct it might be.
He photographs her through the gap in a changing room door and later sends the picture to a colleague. That is section 77. The changing room is a place which in the circumstances would reasonably be expected to provide privacy, and Explanation 1 covers it. Sending the picture is a separate limb of the same section, dissemination.
Assault on a Woman, Sexual Harassment, Voyeurism and Stalking
Change one fact. Suppose she had allowed him to take a photograph of her but not to share it, and he shared it. Explanation 2 to section 77 makes that dissemination an offence, even though the capture was consensual.
What beginners get wrong
Thinking section 75 requires a workplace. It does not. The statutory offence has no employment element at all. The obligations on employers to prevent and redress sexual harassment come from a separate statute, and a prosecution under section 75 is independent of it.
Thinking voyeurism requires a camera. Section 77 punishes watching as well as capturing an image.
Thinking stalking must be physical. Limb (ii) is entirely electronic and needs no following at all.
Thinking these offences are gender-neutral. They are not. Sections 75 and 78 open with "A man" and "Any man", and every section in this group has a woman as the victim.
Limits and criticism
"Modesty" is doing a great deal of work without a definition. Both sections 74 and 79 turn on it, and its content has been supplied by decisions rather than by Parliament, which leaves the outer edge of two frequently used offences uncertain.
Section 78's third exception is very wide. Conduct that "in the particular circumstances was reasonable and justified" is an exception the accused must prove, but its breadth invites argument in every case.
The gendering is criticised from both sides. These offences protect only women, which leaves a male or transgender victim of identical conduct without a remedy under these sections; and defenders of the position argue that the offences answer a pattern of harm that is overwhelmingly directed at women.
Quick revision
Section 74. Assault or criminal force with intent to outrage modesty, or knowledge that it is likely: one to five years and fine.
Section 75. Sexual harassment, four acts. Physical contact and advances, demand for sexual favours, showing pornography against her will: up to three years rigorous imprisonment, or fine, or both. Sexually coloured remarks: up to one year, or fine, or both.
Section 76. Assault or criminal force, or abetment, with intent to disrobe or compel nakedness: three to seven years and fine.
Section 77. Voyeurism: watching, capturing or disseminating an image of a private act. First conviction one to three years; second, three to seven. Explanation 2 makes non-consensual dissemination of a consensually captured image an offence.
Section 78. Stalking: following and repeated contact despite disinterest, or monitoring electronic communication. Three exceptions in the proviso. Up to three years first, up to five thereafter.
Section 79. Word, sound, gesture or object intended to insult modesty, or intruding on her privacy: simple imprisonment up to three years and fine.
Assault on a Woman, Sexual Harassment, Voyeurism and Stalking
Test yourself
1. What separates section 74 from section 79? Section 74 requires an assault or the use of criminal force; section 79 requires only a word, sound, gesture or exhibition of an object intended to be heard or seen by the woman, or an intrusion on her privacy. Section 74 also carries a minimum of one year, which section 79 does not.
2. Which limb of section 75 carries the lower punishment, and what is it? Clause (iv), making sexually coloured remarks, punishable under sub-section (3) with imprisonment up to one year, or fine, or both, against up to three years rigorous imprisonment for the other three limbs.
3. A woman consents to a photograph being taken but not to its being shared, and it is shared. Any offence? Yes. Explanation 2 to section 77 provides that where the victim consents to the capture but not to dissemination to third persons, the dissemination is an offence under that section.
4. Give the three exceptions to stalking. That the conduct was pursued for preventing or detecting crime by a man entrusted with that responsibility by the State; that it was pursued under any law or to comply with a condition or requirement imposed under any law; or that in the particular circumstances it was reasonable and justified.
5. Is a woman's age relevant to whether her modesty can be outraged? No. Modesty attaches to a woman as a woman, so a woman of any age, including a child, has modesty capable of being outraged, and the test of the act is objective.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.