Bharatiya Nyaya Sanhita (BNS) is the new criminal legislation that replaces India’s older Penal Code (IPC). This move is a bid to carry out a comprehensive overhaul of the Indian Penal Code and modernise the Indian criminal justice system. Among other crimes, the changes in the BNS has strengthened the legal framework for addressing crimes against women, including sexual harassment. These changes have led to clearer definitions and stricter penalties have transformed laws to be more victim-centred in their applicability.
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 (PoSH) is a separate legislation which was specifically designed to address sexual harassment in the workplace.
This means that changes made to the BNS do not directly change the PoSH Act or its procedures.
Organisations must continue to follow the existing PoSH Act of 2013, as no amendments have been made to it directly.
Despite this, the changes to the BNS have had a significant impact on the implementation and enforcement of the PoSH law in India. These changes can act as learnings which can be adopted by organisations to fortify their commitment to the PoSH Act and build a strong anti-harassment culture.
A broad understanding of sexual harassment
The BNS has given expanded definitions to crimes, including a very exhaustive definition to the offence of “sexual harassment”. Its definition under Section 354A of the BNS is as follows:
“Sexual harassment includes unwelcome physical contact and advances, requests for sexual favors, making sexually colored remarks, showing pornography against someone’s will, and any other unwelcome behavior.”
Therefore, the BNS now criminalises several acts, whether subtle or apparent, as sexual harassment. For organisations, this extended understanding of sexual harassment holds several key takeaways for ensuring successful implementation of PoSH directives, such as:
- This definition is similar to how sexual harassment has been defined under the PoSH Act. Hence, it signifies the importance for organisations to communicate to the immediate and appropriate consequences for any instance of sexual harassment, regardless of its perceived severity.
- The broad understanding of harassment impresses upon employers the need to create policies that clearly define what constitutes sexual harassment, focusing on subtle and non-verbal forms.
- This also emphasises the need for organisations to encourage employees to speak up about any inappropriate behaviour, assuring them that even minor misconducts will be taken seriously.
Updates and protections
The Bharatiya Nyaya Sanhita now ensures that complainants of sexual harassment are informed about the progress of their cases, with mandatory updates on investigations. Complainants are provided with robust legal support and protections to ensure they can report offences without fear of retribution or dismissal. Such provisions are also made in the PoSH Act.
Organisations can emulate the principles laid down by the BNS and PoSH Act, by establishing clear guidelines that ensure a fair and unbiased investigation process. They must ensure that complainants are fully informed of their rights, the steps involved in filing a complaint, and what to expect during an inquiry. Further, they may also assist by:
- Offering psychological counselling services to complainants, helping them to feel supported and understood.
- Building better access to legal resources, ensuring that complainants can pursue their cases without any fear.
- Monitoring the workplace environment closely after a complaint is filed, ensuring that the victim is not facing retaliation.
- Providing complainants with ongoing support and assurance that their safety and well-being are a priority for the organisation.