Same-Gender Sexual Harassment Complaints Maintainable Under Sexual Harassment of Women at Workplace Act, 2013
“Sexual harassment, as contemplated in the 2013 Act, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same-gender cannot hurt the modesty or dignity as envisaged by the 2013 Act”, observed the Calcutta High Court.
In a noteworthy judgment, the Calcutta High Court has ruled that same-gender complaints are maintainable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the POSH Act.
Brief facts of the case
The petitioner contends that the respondent authorities (Internal Complaints Committee of an institution) acted without jurisdiction in entertaining a complaint on alleged sexual harassment against the petitioner on the complaint of the private respondent, despite the fact that both of them are of the same gender.
Contentions of the petitioner
Mr. Soumya Majumder, Learned counsel appearing for the petitioner places particular reliance on the definition of “sexual harassment” in Section 2(n) of the said Act and seeks to impress upon the Court that the acts contemplated therein have no nexus with the present complaint.
Learned counsel for the petitioner also places reliance upon Vishaka & Ors. –vs- State of Rajashthan & Ors., reported at 1997(7) JT 384.
Arguments of the respondent
Mr. Kallol Basu, learned counsel appearing for the private respondent argues on the basis of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 and submits that the said Regulations are broad enough to encompass respondents of all genders, implicitly meaning that the gender of the complainant and the respondents can very well be the same in order to attract the rigours of the Regulations, which govern the present parties as well. By placing particular reliance on Regulation 8(2), learned counsel for the private respondent argues that the expression “the respondents shall file his/her reply” has been used therein, thereby bringing within its purview respondents of both genders.
Observation made by Court
- Although the Court held that there was ‘some substance’ in the petitioner’s argument that the definition of ‘respondent’ has to be read in conjunction with the rest of the statute, it said that “there is nothing in Section 9 of the 2013 Act to preclude a same-gender complaint under the Act”.
“Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized”, the Court noted.
- The Court added that the definition of “sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the back-drop of the social perspective.
“Sexual harassment, as contemplated in the2013 Act, thus, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same-gender cannot hurt the modesty or dignity as envisaged by the 2013 Act“.
- A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by any of the acts, as contemplated in Section2(n), irrespective of the sexuality and gender of the perpetrator of the act”, the Court added.
- “If Section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender, even inter se,” it added.
Coram: Justice Sabyasachi Bhattacharyya
Case name: Dr. Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College and others.
Citation: W.P.A. 9141 of 2020