The Bharatiya Nyaya Sanhita, 2023 (BNS) contains specific provisions to protect women against acts that violate their bodily dignity, modesty, sexual autonomy, privacy and personal security. Among these, Sections 74 to 79 deal with different forms of misconduct against women, ranging from physical assault and criminal force to sexual harassment, disrobing, voyeurism, stalking and insulting a woman’s modesty.
These provisions recognise that offences against women are not limited to physical violence alone. Unwanted sexual conduct, attempts to disrobe a woman, watching or recording her during private acts, persistent following or monitoring, and words or gestures intended to insult her modesty may also constitute criminal offences.
Common Objective
Sections 74–79 BNS collectively aim to protect women from conduct that violates their dignity, privacy, sexual autonomy and modesty.
- Bodily dignity → Protects a woman from unwanted physical force, assault or acts that violate her bodily integrity.
- Privacy → Protects her from being watched, recorded or monitored in situations where she has a reasonable expectation of privacy.
- Sexual autonomy → Protects her right to decide freely whether and how she participates in sexual or sexualised conduct, without harassment, coercion or unwanted advances.
- Modesty → Protects her personal dignity and social/sexual dignity from acts, words or gestures intended to outrage or insult it.
Section 74 BNS — Assault or Use of Criminal Force to Woman with Intent to Outrage Her Modesty
The provision protects a woman’s bodily dignity, modesty and personal autonomy from acts involving assault or criminal force.
The section uses the expression “assaults or uses criminal force to any woman”. Therefore, the provision covers two forms of prohibited conduct—assault and criminal force. Assault generally involves an act or gesture which causes a person to apprehend that criminal force is about to be used against her, whereas criminal force involves the intentional use of force against a person without her consent, in circumstances falling within the meaning of criminal force under the BNS.
Thus, the prosecution is required to establish the requisite intention or knowledge. It is not necessary in every case that the offender expressly admits that he intended to outrage the woman’s modesty. The intention or knowledge may be gathered from the nature of the act, the manner in which it was committed, the circumstances surrounding the incident and the conduct of the accused.
Meaning of “Modesty”
The expression “modesty” is not specifically defined in Section 74. Its meaning has therefore been developed substantially through judicial interpretation. Modesty is generally understood as relating to the woman’s sense of sexual dignity and decency.
The Supreme Court has explained that the essence of a woman’s modesty is her sexual dignity. In State of Punjab v. Major Singh, the Supreme Court observed that the essence of a woman’s modesty is her sex and that the protection is not confined merely to adult women.
“Assaults or Uses Criminal Force”
The words “assault” and “criminal force” have distinct meanings. An assault does not necessarily require actual physical contact. A gesture or preparation may amount to assault when it causes the woman to apprehend that criminal force is about to be used against her.
On the other hand, criminal force involves actual use of force. Where a person intentionally uses force against a woman without her consent, with the requisite circumstances contemplated by the law, the act may constitute criminal force.
| Basis | Assault | Criminal Force |
|---|---|---|
| Meaning | Assault involves a gesture or preparation which causes a person to apprehend that criminal force is about to be used against them. | Criminal force involves the actual use of force against a person without their consent. |
| Physical Contact | Actual physical contact is not necessary. | Actual use of force is necessary. |
| Nature | It creates an apprehension or fear of immediate use of criminal force. | It involves the actual application or use of force. |
| Stage | It may occur before physical force is actually applied. | It occurs when force is actually used. |
| Example | A raises his hand towards B in a threatening manner, causing B to apprehend that A is about to hit her. | A intentionally grabs B’s hand without her consent and uses physical force against her. |
| Key Point | Apprehension of force | Actual use of force |
For example, if a man intentionally grabs, pulls, touches or otherwise applies force to a woman in circumstances indicating an intention to violate her sexual dignity, the conduct may fall within Section 74, provided the statutory requirement concerning intention or knowledge is established.
Intention to Outrage Her Modesty
The first mental element expressly recognised by Section 74 is intention. The section applies where the offender commits the assault or uses criminal force “intending to outrage” the woman’s modesty.
This means that the offender’s conduct is accompanied by the purpose or intention of violating the woman’s modesty. The intention is normally determined from the facts and circumstances of the particular case rather than merely from the statement of the accused.
The court may consider factors such as the nature of physical contact, the part of the body involved, the manner in which the woman was approached, the words or gestures accompanying the act, the surrounding circumstances and the subsequent conduct of the accused.
Knowledge that Modesty is Likely to be Outraged
Section 74 also covers a situation where the offender may not specifically intend to outrage the woman’s modesty but knows that his act is likely to outrage her modesty.
The statutory language is important because the provision uses the words “intending to outrage or knowing it to be likely that he will thereby outrage her modesty.”
Therefore, either of the two mental states can satisfy this requirement:
intention to outrage her modesty, or
knowledge that the act is likely to outrage her modesty.
The prosecution therefore does not always have to prove a specific purpose to outrage modesty if the circumstances establish that the accused knew that his conduct was likely to have that consequence.
Nature of the Offence
Section 74 is concerned with conduct that violates a woman’s bodily dignity and sexual modesty through assault or criminal force. It is distinct from the more serious sexual offences dealt with separately under the BNS.
The provision does not require that the act must necessarily amount to rape or another sexual offence. An act falling short of those offences may nevertheless attract Section 74 when the ingredients of assault or criminal force and the requisite intention or knowledge regarding the woman’s modesty are established.
Punishment under Section 74
The punishment prescribed by Section 74 is significant. The offender “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.”
The expression “imprisonment of either description” means that the court may impose either rigorous imprisonment or simple imprisonment, subject to the statutory framework governing the sentence.
The minimum imprisonment prescribed is one year. The imprisonment may extend up to five years. In addition, the offender is liable to fine.
Thus, the punishment can be stated as:
Imprisonment: Minimum 1 year and maximum 5 years
Type: Imprisonment of either description
Fine: Also imposable
The provision therefore prescribes a mandatory minimum term of imprisonment of one year, while allowing the court to impose imprisonment up to five years depending upon the facts and circumstances of the case.
Classification of Offence
For purposes of criminal procedure, the offence under Section 74 is classified as follows:
| Classification | Section 74 BNS |
|---|---|
| Nature of offence | Assault or use of criminal force to woman with intent to outrage her modesty |
| Cognizable | Yes |
| Bailable | No — Non-bailable |
| Triable by | Any Magistrate |
| Punishment | Imprisonment of either description for 1 to 5 years, and fine |
Being a cognizable offence, the police may proceed in accordance with the law relating to cognizable offences. Being non-bailable, bail is not available as a matter of right in the same manner as in a bailable offence; the question of bail is dealt with by the competent court under the applicable procedural law.
The offence is triable by any Magistrate, meaning that a Magistrate is competent to conduct the trial of an offence under Section 74.
Essential Ingredients of Section 74 BNS – Aman Kumar v. State of Haryana, AIR 2004 SC 1497
The Supreme Court explained the essential ingredients of the offence corresponding to Section 354 IPC, which is now covered by Section 74 of the Bharatiya Nyaya Sanhita, 2023. The Court held that the essential requirements are that the person assaulted must be a woman and that the accused must have used criminal force against her with the intention of outraging her modesty. The culpable intention of the accused is the central element of the offence.
The Court further observed that the essence of a woman’s modesty is her sex. Modesty, in the context of this provision, is an attribute associated with female human beings as a class. Therefore, the protection is directed towards preserving the sexual dignity and modesty of women.
The intention of the accused is of great significance in determining whether the offence has been committed. The conduct of the accused must be examined to determine whether he intended to outrage the woman’s modesty or knew that his conduct was likely to have that effect. At the same time, the reaction of the woman is relevant, but the absence of a particular reaction by her is not by itself conclusive for deciding whether the offence has been committed.
The Court also made it clear that actual intention to outrage modesty as the sole object is not indispensable where the accused had knowledge that his act was likely to outrage the woman’s modesty. Thus, knowledge that modesty is likely to be outraged can be sufficient to constitute the offence, even where deliberate intention to cause such outrage is not separately established.
For instance, the act of pulling a woman, removing her clothes, and simultaneously making a request for sexual intercourse was considered conduct capable of outraging the modesty of a woman. Such conduct, viewed in its circumstances, may establish the requisite intention or knowledge for the offence.
Section 75 BNS — Sexual Harassment
Section 75 of the Bharatiya Nyaya Sanhita, 2023 deals with the offence of sexual harassment. The section identifies four specific forms of conduct as sexual harassment and then prescribes different punishments depending upon the nature of the conduct.
The provision is divided into three sub-sections. Section 75(1) defines the acts which constitute sexual harassment, while Section 75(2) and Section 75(3) prescribe punishment for those acts.
Section 75(1) — What constitutes Sexual Harassment
The Bare Act provides:
“Any man committing any of the following acts:—”
This opening part makes it clear that the offence under Section 75(1) is committed when a man performs any of the acts specified in clauses (i) to (iv) against a woman in the circumstances contemplated by the provision.
The four forms of conduct are explained below.
Section 75(1)(i) — Physical Contact and Advances involving Unwelcome and Explicit Sexual Overtures
The Bare Act states:
“physical contact and advances involving unwelcome and explicit sexual overtures”
This clause covers unwelcome physical contact or advances which have an explicit sexual character.
The important expression here is “unwelcome”. The conduct must be unwanted by the woman. Thus, physical contact or advances having a sexual nature, when they are imposed upon the woman against her wishes, can constitute sexual harassment under this clause.
The words “explicit sexual overtures” indicate conduct which clearly conveys a sexual intention or sexual proposition. Therefore, ordinary social interaction or innocent physical contact does not automatically fall within this clause. The conduct must have the required sexual character, and it must be unwelcome.
For example, deliberately making unwanted physical contact with a woman accompanied by an explicit sexual advance may fall within Section 75(1)(i).
Section 75(1)(ii) — Demand or Request for Sexual Favours
The Bare Act provides:
“a demand or request for sexual favours”
Under this clause, a demand or request for sexual favours constitutes sexual harassment.
The important point is that the actual sexual favour does not have to be obtained. The demand or request itself is sufficient to attract this clause, provided the statutory requirements are satisfied.
Thus, if a man demands or requests sexual favours from a woman, the conduct may constitute sexual harassment even if the woman refuses the demand or the requested act never takes place.
The expression “sexual favours” refers to favours of a sexual nature. Therefore, the provision specifically targets demands or requests that seek sexual gratification or a sexual act from the woman.
Section 75(1)(iii) — Showing Pornography Against the Will of a Woman
The Bare Act states:
“showing pornography against the will of a woman”
This clause makes the showing of pornography against the woman’s will an offence of sexual harassment.
The expression “against the will” is important. The provision is concerned with situations where pornography is shown to a woman when she does not want to see it.
Therefore, a man cannot escape liability merely by claiming that the woman did not expressly object at the precise moment of showing the material. The circumstances must be examined to determine whether the pornography was shown against her will.
The provision therefore protects a woman from being subjected to unwanted pornographic material as a form of sexual harassment.
Section 75(1)(iv) — Making Sexually Coloured Remarks
The Bare Act provides:
“making sexually coloured remarks”
This clause deals with sexually coloured remarks made by a man.
Such remarks are statements, comments or verbal expressions having a sexual character or sexual undertone and directed towards a woman in circumstances covered by the provision.
The nature and context of the words are important. A remark must be assessed in its actual circumstances, language, context and sexual character to determine whether it amounts to a sexually coloured remark.
This clause is separately punishable under Section 75(3) and therefore carries a lower maximum punishment than clauses (i), (ii) and (iii).
Section 75(2) — Punishment for Clauses (i), (ii) and (iii)
Section 75(2) provides:
“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.”
Therefore, Section 75(2) applies specifically to:
Section 75(1)(i) — unwelcome physical contact and explicit sexual overtures;
Section 75(1)(ii) — demand or request for sexual favours; and
Section 75(1)(iii) — showing pornography against the woman’s will.
The punishment is rigorous imprisonment up to three years, or fine, or both.
The expression “may extend to three years” means that three years is the maximum term of rigorous imprisonment; the section does not prescribe a mandatory minimum imprisonment.
The court may therefore impose rigorous imprisonment, fine, or both, depending upon the circumstances of the case.
Classification of Section 75(2)
| Classification | Section 75(2) |
|---|---|
| Cognizable | Yes |
| Bailable | No — Non-bailable |
| Triable by | Court of Session |
| Punishment | Rigorous imprisonment up to 3 years, or fine, or both |
Section 75(3) — Punishment for Sexually Coloured Remarks
Section 75(3) provides:
“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.”
This sub-section specifically applies to Section 75(1)(iv), that is, making sexually coloured remarks.
The punishment is different from Section 75(2). Here, the accused may be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
“Imprisonment of either description” means simple imprisonment or rigorous imprisonment.
Unlike Section 75(2), which specifically provides for rigorous imprisonment, Section 75(3) permits imprisonment of either description.
The maximum imprisonment under Section 75(3) is one year.
Classification of Section 75(3)
| Classification | Section 75(3) |
|---|---|
| Cognizable | Yes |
| Bailable | No — Non-bailable |
| Triable by | Court of Session |
| Punishment | Imprisonment up to 1 year, or fine, or both |
Section 75 — Complete Structure
| Provision | Offence | Punishment |
|---|---|---|
| 75(1)(i) | Unwelcome physical contact and explicit sexual overtures | 75(2): Rigorous imprisonment up to 3 years, or fine, or both |
| 75(1)(ii) | Demand or request for sexual favours | 75(2): Rigorous imprisonment up to 3 years, or fine, or both |
| 75(1)(iii) | Showing pornography against the woman’s will | 75(2): Rigorous imprisonment up to 3 years, or fine, or both |
| 75(1)(iv) | Making sexually coloured remarks | 75(3): Imprisonment up to 1 year, or fine, or both |
Section 77 BNS — Voyeurism
Voyeurism means secretly watching, observing, recording, photographing, or sharing images of a woman while she is engaged in a private act, in circumstances where she reasonably expects privacy.
Section 77 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with voyeurism. The section protects a woman against the watching, capturing, or dissemination of images of her while she is engaged in a private act, where she reasonably expects that she will not be observed.
The section is particularly important because it separately deals with the first conviction and second or subsequent conviction, with a higher punishment for repeat offenders.
Bare Act
“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…”
In simple words, Section 77 applies where a person watches a woman secretly, captures her image while she is engaged in a private act, or disseminates such an image, in circumstances where she would normally expect privacy.
The provision therefore covers three principal forms of conduct: watching, capturing an image, and disseminating an image.
“Watches”
The word “watches” covers the act of observing a woman while she is engaged in a private act, in circumstances where she would normally expect not to be observed.
Therefore, voyeurism is not limited to taking photographs or making videos. Secretly observing a woman during a private act can itself constitute the offence.
For example, if a person secretly observes a woman while she is changing clothes in a private place where she reasonably expects privacy, the act may fall within Section 77.
“Captures the image”
The section also covers a person who “captures the image” of a woman while she is engaged in a private act.
This includes circumstances where a person secretly takes a photograph, video or other visual recording of the woman while she is engaged in a private act and reasonably expects privacy.
Thus, actual dissemination is not necessary for the capture itself to fall within the provision.
“Disseminates such image”
The Bare Act further uses the words:
“or disseminates such image”
Dissemination means making or distributing the image available to other persons.
Therefore, if a person obtains an image of a woman engaged in a private act and subsequently shares, circulates, distributes or makes that image available to third persons, the dissemination can attract Section 77, subject to the requirements of the provision.
An important point is that consent to the capture of an image does not automatically mean consent to its dissemination. This is specifically clarified by Explanation 2.
Explanation 1 : “Private Act”
The Bare Act provides:
“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…”
The idea is that the woman must be in circumstances where she would reasonably expect privacy.
The explanation specifically includes situations where:
“the victim’s genitals, posterior or breasts are exposed or covered only in underwear”
Thus, where a woman’s genitals, posterior or breasts are exposed or covered only with underwear, the situation can constitute a private act when the other statutory conditions are satisfied.
The Explanation also includes:
“the victim is using a lavatory”
Therefore, observing or recording a woman while she is using a lavatory falls within the concept of a private act because a person ordinarily has a reasonable expectation of privacy in such circumstances.
The Explanation further covers:
“the victim is doing a sexual act that is not of a kind ordinarily done in public.”
Therefore, a sexual act which is not ordinarily performed in public is also included within the meaning of private act.
In simple words
For Section 77, a private act can include a situation where the woman is:
exposing or only wearing underwear over her genitals, posterior or breasts;
using a lavatory; or
engaging in a sexual act which is not ordinarily done in public.
The common idea is reasonable expectation of privacy.
Explanation 2 — Consent to Capture but Not to Dissemination
Explanation 2 deals with a very important situation.
The Bare Act provides:
“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.”
This means that consent to taking or capturing an image is not the same as consent to sharing that image with other people.
For example, suppose a woman voluntarily agrees to have a private photograph taken by a person. She has therefore consented to the capture.
However, if she has not consented to the photograph being shared with other people, and the person nevertheless circulates or shares it with third persons, such dissemination is treated as an offence under Section 77.
Therefore:
Consent to capture ≠ Consent to dissemination
This is one of the most important concepts under Section 77.
Punishment — First Conviction
The Bare Act provides:
“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”
For a first conviction, the offender may be punished with imprisonment of either description for a minimum of 1 year, which may extend up to 3 years, and the offender is also liable to fine.
Imprisonment of either description means simple imprisonment or rigorous imprisonment.
Classification — First Conviction
| Classification | Section 77 — First Conviction |
|---|---|
| Cognizable | Yes |
| Bailable | Yes — Bailable |
| Triable by | Court of Session |
| Punishment | 1 to 3 years + Fine |
Punishment — Second or Subsequent Conviction
The section provides a higher punishment where the offender is convicted for the second or subsequent time:
“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.”
Therefore, a repeat offender faces a substantially higher punishment.
The imprisonment is not less than 3 years and may extend up to 7 years, along with fine.
Again, “imprisonment of either description” means simple imprisonment or rigorous imprisonment.
Classification — Second or Subsequent Conviction
| Classification | Section 77 — Second/Subsequent Conviction |
|---|---|
| Cognizable | Yes |
| Bailable | No — Non-Bailable |
| Triable by | Court of Session |
| Punishment | 3 to 7 years + Fine |
Complete Structure of Section 77
| Part | Conduct | Punishment | Classification |
|---|---|---|---|
| First Conviction | Voyeurism | 1–3 years + Fine | Cognizable, Bailable, Court of Session |
| Second/Subsequent Conviction | Repeat voyeurism | 3–7 years + Fine | Cognizable, Non-Bailable, Court of Session |
Section 78 BNS — Stalking
Stalking is a pattern of repeated, unwanted attention or contact that causes someone to feel frightened, threatened, or unsafe. It can happen between strangers, acquaintances, former partners, coworkers, or even family members.
Section 78 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with the offence of stalking. In simple terms, stalking means repeatedly following or contacting a woman despite her clear disinterest, or monitoring her internet/electronic communications.
The section is divided into two sub-sections. Section 78(1) explains what conduct constitutes stalking, while Section 78(2) provides the punishment, with a higher punishment for a second or subsequent conviction.
Section 78(1) — Meaning of Stalking
The Bare Act provides:
“Any man who—”
The provision then identifies two situations in which a man commits the offence of stalking.
Section 78(1)(i) — Following or Repeatedly Contacting a Woman ( Situation 1 )
The Bare Act states:
“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”
This clause covers a situation where a man follows a woman and repeatedly contacts or attempts to contact her for the purpose of developing or maintaining personal interaction, despite the woman clearly showing that she is not interested.
The most important part is:
“despite a clear indication of disinterest by such woman”
This means that the woman must have clearly indicated that she does not want such interaction, yet the man continues to follow, contact, or attempt to contact her repeatedly.
The contact may take different forms, such as repeatedly approaching her, calling her, messaging her or attempting to communicate with her. What is important under this clause is the repeated nature of the conduct and the woman’s clear indication of disinterest.
For example, if a man repeatedly follows a woman on her way to work and repeatedly tries to contact her even after she has clearly indicated that she does not want to interact with him, the conduct may constitute stalking under Section 78(1)(i).
The provision therefore does not make every instance of communication or following a woman an offence. The statutory requirements, particularly repeated conduct and a clear indication of disinterest, are important.
Section 78(1)(ii) — Monitoring Internet, E-mail or Electronic Communication ( Situation 2 )
The second form of stalking is provided in clause (ii):
“monitors the use by a woman of the internet, e-mail or any other form of electronic communication”
This clause deals with electronic or digital stalking.
A man commits stalking when he monitors a woman’s use of the internet, e-mail or any other form of electronic communication, subject to the statutory provision.
The words “any other form of electronic communication” make the provision broad enough to cover electronic communication beyond traditional e-mail.
Thus, Section 78 recognises that stalking may take place not only physically but also through digital means.
For example, continuously monitoring a woman’s online communications or electronic activities may fall within Section 78(1)(ii), depending upon the facts and circumstances.
Exceptions to Stalking — Proviso to Section 78(1)
Section 78 contains an important proviso. It recognises certain situations where conduct that might otherwise appear to fall within stalking will not amount to stalking, provided the accused proves the applicable circumstance.
The proviso begins:
“Provided that such conduct shall not amount to stalking if the man who pursued it proves that—”
Therefore, these are exceptions/defences available when the specified conditions are satisfied.
First Exception — Prevention or Detection of Crime
The Bare Act provides:
“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”
This means that conduct will not amount to stalking where it was carried out for the legitimate purpose of preventing or detecting crime, and the person accused had been entrusted by the State with responsibility for crime prevention or detection.
For example, a police officer monitoring a person as part of an authorised investigation may not be treated as stalking merely because the officer is following or monitoring that person.
However, the statutory conditions must be satisfied. The person must have been entrusted by the State with the relevant responsibility.
Second Exception — Conduct Pursued Under Law
The second exception provides:
“it was pursued under any law or to comply with any condition or requirement imposed by any person under any law”
This means that conduct will not constitute stalking where it was carried out under the authority of law or to comply with a condition or requirement imposed under law.
Therefore, conduct undertaken pursuant to a lawful legal requirement is excluded from the offence, subject to the conditions of the proviso.
Third Exception — Reasonable and Justified Conduct
The third exception provides:
“in the particular circumstances such conduct was reasonable and justified.”
This is a broader exception. Where the accused proves that, considering the particular circumstances, the conduct was reasonable and justified, it will not amount to stalking.
The words “reasonable and justified” require the circumstances of the particular case to be considered. Therefore, the conduct cannot be examined completely in isolation.
Section 78(2) — Punishment
Section 78(2) provides different punishments for a first conviction and a second or subsequent conviction.
First Conviction
The Bare Act provides:
“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”
Therefore, on the first conviction, the offender may receive imprisonment of either description up to three years, along with fine.
“Imprisonment of either description” means simple imprisonment or rigorous imprisonment.
There is no minimum imprisonment prescribed in Section 78(2) for the first conviction; the imprisonment may extend up to three years.
Classification — First Conviction
| Classification | Section 78(2) — First Conviction |
|---|---|
| Cognizable | Yes |
| Bailable | Yes — Bailable |
| Triable by | Any Magistrate |
| Punishment | Imprisonment up to 3 years + Fine |
Second or Subsequent Conviction
The Bare Act further provides:
“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.”
Therefore, when the accused is convicted for stalking for the second or subsequent time, the maximum imprisonment increases from three years to five years.
The imprisonment may be simple or rigorous imprisonment, and the offender is also liable to fine.
Classification — Second or Subsequent Conviction
| Classification | Section 78(2) — Second/Subsequent Conviction |
|---|---|
| Cognizable | Yes |
| Bailable | No — Non-Bailable |
| Triable by | Any Magistrate |
| Punishment | Imprisonment up to 5 years + Fine |
Complete Structure of Section 78
| Provision | Conduct/Punishment | Classification |
|---|---|---|
| 78(1)(i) | Repeatedly following/contacting a woman despite her clear disinterest | Stalking |
| 78(1)(ii) | Monitoring woman’s internet, e-mail or electronic communication | Stalking |
| First conviction | Up to 3 years + Fine | Cognizable, Bailable, Any Magistrate |
| Second/Subsequent conviction | Up to 5 years + Fine | Cognizable, Non-Bailable, Any Magistrate |
Section 79 BNS – Word, Gesture or Act Intended to Insult Modesty of a Woman
Section 79 of the Bharatiya Nyaya Sanhita, 2023 (BNS) deals with conduct that is deliberately intended to insult the modesty of a woman. The offence can be committed through words, sounds, gestures, objects, or intrusion into her privacy. Physical contact or assault is not necessary.
Bare Act Provision – Section 79
The section provides that whoever:
“intending to insult the modesty of any woman”
utters words, makes a sound or gesture, exhibits an object, intending that it should be heard or seen by the woman, or intrudes upon her privacy, commits the offence.
The punishment is:
“simple imprisonment for a term which may extend to three years, and also with fine.”
“Intending to insult the modesty of any woman”
This is the most important requirement of Section 79.
The person must have the intention to insult the modesty of the woman. In other words, the act should not merely be accidental or innocuous; the circumstances should show that the accused deliberately engaged in the conduct to demean, humiliate or offend the woman’s modesty.
Example:
A deliberately makes a sexually offensive remark towards a woman with the purpose of humiliating her. If the other ingredients are established, Section 79 may apply.
“Utters any words”
The first form of conduct covered is words.
A person may commit the offence by deliberately saying words that are intended to insult a woman’s modesty and ensuring that she hears them.
Example:
A intentionally makes an obscene or sexually insulting remark directly to B, a woman, intending to humiliate her.
The important point is not simply that the words are unpleasant; the required intention to insult modesty must be present.
“Makes any sound”
The provision also covers sounds, even where there may not be a complete verbal statement.
For example, a person may deliberately make sexually suggestive or obscene sounds towards a woman, intending that she hear them and intending to insult her modesty.
Thus, Section 79 is wider than merely using insulting language.
“Makes any gesture”
A gesture is another form of conduct expressly covered by the section.
A gesture may communicate an insulting or sexually offensive message without any words being spoken.
Example:
A deliberately makes an obscene gesture towards B, intending that B sees it and feels humiliated.
If the statutory intention is established, such conduct may fall under Section 79.
“Exhibits any object in any form”
The section also covers deliberately showing an object to a woman in a manner intended to insult her modesty.
For example, if a person intentionally displays an obscene or sexually offensive object before a woman so that she sees it and the purpose is to insult her modesty, Section 79 may apply.
Therefore, the offence is not restricted to speech or physical gestures.
“Intending that such word or sound shall be heard”
This part of the provision highlights the importance of intention.
The accused must intend that the woman should hear the words or sound.
For example, if A deliberately makes an offensive sexual remark loudly so that B can hear it, the fact that A intended B to hear the remark becomes relevant.
“Or that such gesture or object shall be seen”
Similarly, when the conduct involves a gesture or object, the accused must intend that the woman should see it.
For example, deliberately making an obscene gesture towards a woman so that she notices it can fall within this part of Section 79, provided the intention to insult her modesty is established.
“Intrudes upon the privacy of such woman”
This is another important part of Section 79.
The provision does not only deal with insulting words or gestures. It also covers intentional intrusion into the privacy of a woman.
Example:
A deliberately interferes with a woman’s private activity or private space in circumstances showing an intention to violate or insult her privacy and modesty.
The exact application will depend upon the facts and circumstances of the case.
Punishment under Section 79 BNS
The Bare Act provides:
“simple imprisonment for a term which may extend to three years, and also with fine.”
Therefore:
- Imprisonment: Simple imprisonment
- Maximum imprisonment: 3 years
- Fine: Also imposable
The punishment is therefore simple imprisonment up to three years along with fine.
Nature of Offence
| Particular | Section 79 BNS |
|---|---|
| Offence | Word, gesture or act intended to insult modesty of a woman |
| Punishment | Simple imprisonment up to 3 years + fine |
| Cognizable | Yes |
| Bailable | Yes |
| Triable by | Any Magistrate |
| Physical contact required? | No |
| Main requirement | Intention to insult the woman’s modesty |
| Corresponding IPC provision | Section 509 IPC |
Section 79 vs Section 74 BNS
This distinction is useful for exams:
| Section 74 | Section 79 |
|---|---|
| Assault or criminal force against a woman | Words, sounds, gestures, objects or privacy intrusion |
| Physical assault/criminal force is involved | Physical contact is not necessary |
| Concerned with outraging modesty | Concerned with insulting modesty |
| More directly concerned with physical conduct | Covers verbal, visual and privacy-related conduct |
Section 78 V/S 79
| Basis | Section 78 – Stalking | Section 79 – Word, Gesture or Act Intended to Insult Modesty of a Woman |
|---|---|---|
| Nature of offence | Deals with stalking a woman. | Deals with insulting the modesty of a woman. |
| Main conduct | Repeatedly following or attempting to contact a woman despite her clear indication of disinterest, or monitoring her electronic communication. | Using words, sounds, gestures, objects, or intruding upon her privacy with the intention of insulting her modesty. |
| Example | Repeatedly following a woman even after she clearly indicates that she does not want contact. | Deliberately making an obscene gesture towards a woman to insult or humiliate her. |
| Physical contact required? | No. | No. |
| Repetition required? | Generally, repeated conduct is an important element under the provision. | No specific requirement of repetition; a single intentional act may be sufficient. |
| Electronic conduct | Specifically covers monitoring internet, email or other electronic communication. | Not specifically focused on electronic monitoring; its focus is words, sounds, gestures, objects and privacy intrusion. |
| Mental element | Knowledge/continuation despite the woman’s clear indication of disinterest, subject to the statutory requirements and exceptions. | Intention to insult the modesty of the woman is essential. |
| Main purpose of provision | To protect women from persistent unwanted following, contact or monitoring. | To protect women from deliberate insulting or offensive conduct affecting their modesty and privacy. |
| Simple distinction | Unwanted repeated following/contact/monitoring | Intentional words/gesture/act/privacy intrusion insulting modesty |
Essence of a Woman’s Modesty – Babul Supriyo v. State of West Bengal & Anr., 2021 (217) AIC 297,
The Court explained that the concept of a woman’s modesty is closely connected with her sexual identity and dignity. The intention of the accused is an important factor in determining whether the act amounts to an offence against her modesty.
The woman’s reaction or response to the incident can be relevant in assessing the circumstances, but the absence of an immediate or particular reaction does not by itself mean that her modesty was not violated.
The Court also emphasized that whether conduct is obscene must be assessed according to contemporary social standards, keeping in mind the prevailing sensibilities and tolerance of an ordinary, reasonable member of society.
FAQs on Sections 74 to 79 BNS
1. What is Section 74 of the BNS?
Section 74 BNS deals with assault or use of criminal force against a woman with the intention of outraging her modesty. The offence focuses on the nature of the act and the intention or knowledge of the accused regarding the violation of the woman’s modesty.
2. What does Section 75 BNS cover?
Section 75 BNS deals with sexual harassment. It covers acts such as unwelcome physical contact and advances, demands or requests for sexual favours, showing pornography against a woman’s will, and making sexually coloured remarks.
3. What is the difference between Section 76 and Section 77 BNS?
Section 76 deals with assault or criminal force against a woman with the intent to disrobe or compel her to be naked.
Section 77 deals with voyeurism, i.e., watching or capturing the image of a woman engaging in a private act, or disseminating such image, in circumstances where she would reasonably expect privacy.
4. What are Sections 78 and 79 BNS about?
Section 78 BNS deals with stalking, including repeatedly following or contacting a woman despite her clear indication of disinterest and monitoring her internet, email or other electronic communication.
Section 79 BNS deals with acts, words, gestures or intrusions intended to insult the modesty or violate the privacy of a woman.