Gender based deviance: sexual harassment, Vishaka, the POSH Act and the Verma Committee

1. Gender based deviance

Gender based deviance is conduct that harms women because they are women, and draws on the power imbalance between men and women. Its forms include sexual harassment at the workplace and in public, stalking, voyeurism, sexual assault and rape, dowry harassment and domestic violence, acid attacks, trafficking for sexual exploitation, sex-selective abortion, and honour crimes. The constitutional basis of protection is Articles 14, 15(3), 19(1)(g) and 21, and India's obligations under the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which India ratified in 1993.

2. Vishaka and the guidelines

A social worker in Rajasthan (Bhanwari Devi), employed in a government programme, was gang-raped in 1992 after she tried to stop a child marriage. Her case showed that women at work had no remedy against sexual harassment. In Vishaka v. State of Rajasthan, 1997 INSC 604, (1997) 6 SCC 241, the Supreme Court held that sexual harassment at the workplace violates Articles 14, 15, 19(1)(g) and 21; relied on CEDAW to fill the legislative vacuum; and laid down guidelines binding until Parliament legislated: a definition of sexual harassment, a duty on employers to prevent it, complaints committees headed by a woman with a third-party member, and disciplinary action.

In Apparel Export Promotion Council v. A.K. Chopra, 1999 INSC 12, (1999) 1 SCC 759, the Court upheld the dismissal of a superior who tried to molest a subordinate, holding that physical contact is not essential; unwelcome sexually determined behaviour is enough. In Medha Kotwal Lele v. Union of India, 2012 INSC 488, (2013) 1 SCC 297, the Court found the guidelines poorly implemented and issued directions, including to the Bar Councils and Medical Councils.

3. The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

• Sexual harassment (section 2(n)): unwelcome physical contact and advances, a demand for sexual favours, sexually coloured remarks, showing pornography, or any other unwelcome physical, verbal or non-verbal conduct of a sexual nature. Section 3 adds circumstances that amount to harassment: promise of preferential treatment, threat of detrimental treatment, interference with work, an intimidating or hostile environment, humiliating treatment likely to affect health or safety.
• Workplace is defined widely, including private organisations, hospitals, sports bodies, dwelling houses (for domestic workers) and any place visited in the course of employment.
• Internal Committee (section 4) in every workplace with ten or more employees: a senior woman employee as Presiding Officer, at least two employees, and one external member from an NGO or a person familiar with women's issues; at least half must be women. Local Committee (section 6) in each district for smaller workplaces and complaints against the employer.
• Complaint (section 9) in writing within three months of the incident (or the last of a series), extendable by three months for sufficient cause.
• Conciliation (section 10) at the woman's request, but no monetary settlement.
• Inquiry (section 11) under the service rules, or as prescribed, completed within ninety days; the committee has the powers of a civil court.
• Report and action (section 13): if the allegation is proved, action for misconduct and deduction from wages for compensation (section 15). Malicious false complaints may be punished (section 14), but failure to prove a complaint is not itself malicious.
• Duties of employer (section 19): a safe workplace, display of the consequences of harassment, awareness programmes and assistance to the woman if she wishes to file a criminal complaint.
• Penalty (section 26): an employer who fails to constitute the Internal Committee or to act on its report is liable to a fine up to fifty thousand rupees, with higher penalties and cancellation of licence on repetition.

In Aureliano Fernandes v. State of Goa, 2023 INSC 527, the Supreme Court found that many public bodies had not constituted the committees, and directed the Union, the States and statutory bodies to ensure that they did.

4. The Justice Verma Committee (2013)

After the gang rape and murder of a young woman in Delhi in December 2012, the Government appointed a committee of Justice J.S. Verma (former Chief Justice of India), Justice Leila Seth and Gopal Subramanium to recommend amendments to the criminal law. It received some eighty thousand submissions and reported on 23 January 2013, within about a month.

• Widen the definition of rape to cover all non-consensual penetration, and recognise marital rape (not accepted by Parliament).
• Create offences of stalking, voyeurism, disrobing, acid attack and sexual harassment.
• Enhanced punishment for gang rape and rape resulting in death or vegetative state, but no death penalty for rape.
• Prosecution of police officers who fail to register complaints, and of public servants; review of the Armed Forces (Special Powers) Act so that sexual offences by armed forces personnel are tried by ordinary courts.
• Police and electoral reforms, including disqualification of candidates against whom a court had taken cognizance of sexual offences; a Bill of Rights for women.
• On the workplace harassment Bill, then pending, it recommended an employment tribunal in place of an internal committee and opposed penalties for false complaints. These suggestions were not adopted.

The Criminal Law (Amendment) Act, 2013 enacted many of the recommendations, adding sections 354A to 354D and 326A and 326B to the IPC and redefining rape. The Supreme Court confirmed the death sentences in the Delhi case in Mukesh v. State (NCT of Delhi), 2017 INSC 448, (2017) 6 SCC 1.

5. Sexual offences under the BNS, 2023

• Assault or criminal force to outrage modesty, section 74 (old IPC 354): one to five years.
• Sexual harassment, section 75 (old 354A): up to three years for physical contact and advances, demand for sexual favours or showing pornography; up to one year for sexually coloured remarks.
• Assault with intent to disrobe, section 76 (old 354B); voyeurism, section 77 (old 354C); stalking, section 78 (old 354D); word, gesture or act intended to insult modesty, section 79 (old 509).

6. Problem (January 2026)

A woman came out early in the morning to fetch water from the village well. A man caught her hand and forcefully pulled her to take her to a nearby place. She resisted and raised an alarm. Advise her.

Issue. What offences are made out, and what she should do.

Law and application. Catching her hand and pulling her by force is criminal force used on a woman; done in a lonely place early in the morning with intent to take her away, the intention to outrage her modesty or the knowledge that it is likely to do so can be inferred, so section 74 BNS is made out (one to five years). Unwelcome physical contact of this kind is also sexual harassment under section 75(1)(i). By obstructing her and pulling her he wrongfully restrained her (section 126(2)). Pulling her by force towards another place is an attempt to abduct (section 138 defines abduction as compelling a person by force to go from any place); if the evidence shows the purpose was illicit intercourse, it is an attempt to commit the offence in section 87, punishable under section 62. If she belongs to a Scheduled Caste or Tribe and the man is not a member, intentionally touching her in a sexual manner without consent is also an atrocity under section 3(1)(w)(i) of the SC/ST (Prevention of Atrocities) Act, 1989.

Advice. She should give information at the police station; for these offences the statement of a woman is to be recorded by a woman police officer (proviso to section 173(1) BNSS), and the officer must register an FIR (Lalita Kumari). The villagers who came on her alarm are witnesses. She may seek compensation under the victim compensation scheme (section 396 BNSS).

Conclusion. The man is liable at least under sections 74, 75 and 126(2) BNS, with attempted abduction and the Atrocities Act if the facts support them.

How this is examined

June 2025: critically evaluate the Verma Committee Report on sexual harassment of women (10 marks). February 2025: a note on gender based deviance. January 2026: the problem above. Essays on Vishaka and the POSH Act are also set. For the Verma question, give the context, the composition, the main recommendations grouped as above, what was enacted in 2013, and what was rejected (marital rape, the tribunal, the disqualification of candidates).