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Remarkable ruling allowing same gender complaint under POSH Law

Drafted by Advocate Bhakti Chheda

Recently, the Calcutta High Court in a writ petition held that a complaint on sexual harassment is maintainable even though both petitioner and respondent ARE OF THE SAME GENDER.

In this case of “MALABIKA BHATTACHARJEE Vs. INTERNAL COMPLAINTS COMMITTEE, VIVEKANANDA COLLEGE AND ORS”, the petitioners contended that the respondent (Internal Complaints Committee) acted without jurisdiction in entertaining a complaint on alleged sexual harassment on the grounds that both the parties involved were of the same gender.

Mr. Kallol Basu, learned counsel appearing for the private respondent submitted that the University Grants Commission (Prevention, Prohibition and redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 were 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 governed the parties. By placing reliance on Regulation 8(2), he argued that the expression “the respondents shall file his/her reply” was used, thereby bringing within its purview respondents of both genders. 

Further, according to the respondent, the definition of “respondent” contemplating “a person” as a respondent clearly indicates that same-gender allegations can also be entertained under the POSH Act.

Let us have a glimpse at some of the definitions under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the ‘POSH Act’ or “2013 Act”.

Section 2(m) of the POSH Act defines “respondent’ as a person against whom the aggrieved woman has made a complaint under section 9.

Further, Section 2(n) of the POSH Act defines “sexual harassment” as following:

sexual harassment” includes any one or more of the following unwelcome acts or behavior (whether directly or by implication) namely: —

(i) physical contact and advances; or

(ii) a demand or request for sexual favours; or

(iii) making sexually coloured remarks; or

(iv) showing pornography; or

(v) any other unwelcome physical, verbal or non-verbal conduct of sexual nature

Section 3 of the POSH Act provides for prevention of sexual harassment at any workplace. Section 3(2) provides the following circumstances, among other circumstances, if it occurs, or is present in relation to or connected with any act or behavior of sexual harassment may amount to sexual harassment: — 

(i) implied or explicit promise of preferential treatment in her employment; or 

(ii) implied or explicit threat of detrimental treatment in her employment; or 

(iii) implied or explicit threat about her present or future employment status; or 

(iv) interference with her work or creating an intimidating or offensive or hostile work environment for her; or 

(v) humiliating treatment likely to affect her health or safety.

The Hon’ble court findings are explained below:

  • A cursory glance at Section 2(m) of the 2013 Act shows that the term respondent” brings within its fold “a person”, thereby including persons of all genders.
  • Section 9 of the POSH Act deals with Complaint of Sexual Harassment. There is nothing in Section 9 [which is referred to in Section 2(m)] to prohibit a same-gender complaint under the Act. 
  • Though 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 definition of “sexual harassment” in Section 2(n) cannot be a static concept but it must be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the 2013 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 Section 2(n), irrespective of the sexuality and gender of the perpetrator of the act. 
  • 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
  • In such view of the matter, the act alleged by the private respondent to have been perpetrated by the petitioner, as evident from the complaint, is maintainable under the 2013 Act. Hence, the complaint cannot be turned down at the outset.

In my view, the liberal and bold approach taken by the Calcutta High Court in dealing with such a sensitive issue is truly eye opening. The interpretation of laws based on changing times is indeed the need of hour considering the contemporary Indian society now accepting LGBT rights. This sets as a strong precedent for organisations, employees and all concerned that any kind of sexual harassment at workplace will not be tolerated.

 

Source: https://services.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=U%2BbhtlrLe2adAHN8Tz%2F1d921FUcvStxo6NWr%2B%2F9HP7XghcD85btu%2BATxuBp7YMVs&caseno=WPA/9141/2020&cCode=3&appFlag=

 

ABOUT THE AUTHOR 

Adv. Bhakti Chheda specializes in corporate laws, labour and employment laws and laws related to women and child rights. She has been actively participating in providing legal advice on matters related to Sexual Harassment of Women at Workplace Act and is involved in formulating sexual harassment policy. She serves as an external member of Internal Committee of some clients.

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