Introduction:

Sexual harassment is a pervasive issue that affects individuals in various spheres of life, including public spaces and workplaces. To address this concern, both the Indian Penal Code,  (IPC) and the Prevention of Sexual Harassment (POSH) Act have provisions defining sexual harassment and its implications. This article aims to provide a comprehensive understanding of Section 354A of the IPC, as well as the definition of sexual harassment under Section 2(n) and 3 of the POSH Act. By exploring the similarities, differences, and relevant case laws, this article aims to shed light on the legal framework for combating sexual harassment.

Definition of Sexual Harassment under Section 354A of IPC:

Section 354A of the IPC addresses the offense of sexual harassment. It recognizes various acts that amount to sexual harassment, including unwelcome physical contact, making sexually coloured remarks, or making explicit advances without the recipient’s consent. This provision acknowledges the need to protect individuals from such offensive and invasive behaviour, with a focus on ensuring the dignity and safety of victims.

It is also pertinent to note that Section 354 specifically addresses situations where a woman is subjected to assault or criminal force with the aim of violating her modesty while Section 354A pertains to acts that constitute sexual harassment and prescribes the corresponding penalties for such offenses.

The High Court of Delhi in XYZ v The State (Govt of NCT of Delhi) (2017) held that there was no illegality in convicting the accused under both these sections.

 Justice Mukta Gupta observed: ‘Once an offence falls under Section 354 IPC, even if ingredients of Section 354A IPC are satisfied, the accused will be punished for Section 354 IPC, the same being more serious in nature as it prescribes the minimum sentence of one year and term for imprisonment, which may extend to five years.’

Definition of Sexual Harassment under Section 2(n) and 3 of the POSH Act:

The POSH Act provides a comprehensive definition of sexual harassment within the workplace. Section 2(n) of the Act defines sexual harassment as any unwelcome act or behaviour, whether directly or indirectly, which includes physical contact, a demand or request for sexual favours, or making sexually coloured remarks, among other actions.

Section 3 of the Act further elaborates on the scope of sexual harassment, encompassing conduct that creates a hostile work environment or interferes with an individual’s work performance.

In ABC v. State of Kerala and others (2018), the Kerala High Court expressed the view that workplace sexual harassment should originate from either an explicit or implicit sexual proposition or unwelcome conduct that possesses a ‘sexual’ undertone. If the behaviour lacks a ‘sexual’ element, the provisions of the POSH Act will not be applicable.

Further, in DEF v. The Central University of Kerala and Ors. (2021), the Kerala High Court clarified that the definition of ‘sexual harassment’ under the POSH Act is comprehensive and inclusive. Therefore, any other type of ‘sexual’ treatment or ‘sexual’ behaviour can be considered within the scope and coverage of the POSH Act.

Similarity between the definition of “sexual harassment” in IPC and POSH Act:

Both Section 354A of the IPC and the POSH Act recognize the significance of addressing sexual harassment. They share common elements in their definitions, such as unwelcome acts, physical contact, and sexually coloured remarks. Both provisions aim to protect individuals from unwarranted advances and offensive behaviour, emphasizing the importance of consent and respect.

Difference between the definition of “sexual harassment” in IPC and POSH Act:

While there are similarities, there are notable differences between the definitions of sexual harassment in the IPC and the POSH Act. The IPC’s Section 354A focuses on sexual harassment in general, encompassing offenses committed outside of the workplace. On the other hand, the POSH Act specifically targets sexual harassment within the workplace, providing a comprehensive framework for prevention, complaint mechanisms, and redressal.

Penalties for “sexual harassment” under IPC and POSH Act:

Under IPC:

Any man who commits the offence that involves physical contact and advances involving unwelcome and explicit sexual overtures; or demands or request for sexual favours; or shows pornography against the will of a woman shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

Any man who makes sexually coloured remarks shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Under POSH Act and Rules 2013:

Once the Internal Complaints Committee (ICC) or the Local Complaints Committee (LCC) concludes the inquiry and determines the respondent’s guilt, the employer is required to initiate disciplinary action against the respondent. The nature and extent of disciplinary action depend on the organization’s policies and practices. It may include warnings, reprimands, suspension, demotion, withholding of increments or promotions, or termination of employment, as deemed appropriate by the employer.

Conclusion:

Section 354A of the IPC and the definition of sexual harassment under the POSH Act provide a legal framework to address and prevent sexual harassment. While Section 354A primarily focuses on offenses committed outside the workplace, the POSH Act specifically addresses sexual harassment within the professional realm. Understanding the similarities and differences between these provisions is crucial for individuals and employers to ensure a safe and inclusive environment.

– Deeksha Rai – Associate Equilibrio Advisory LLP