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In a rather significant judgment that has paved a way for gender-neutral sexual harassment jurisprudence, the Calcutta High Court, has held that same gender sexual harassment complaints are maintainable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, popularly known as the POSH Act.
In a judgement delivered in November 2020, Justice Sabyasachi Bhattacharyya observed that sexual harassment construed under the Act pertains to the dignity of a person which related to his/her gender and sexuality which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the Act. The petition was filed against the Internal Complaints Committee of Vivekananda College, by the person against whom the Committee had instituted action under the Act despite being the same gender as the complainant. The complainant had alleged that the petitioner had vilified and defamed the complainant in public and thus the petitioner contended that this does not fall under the purview of definition of sexual harassment under the Act. The petitioner argued that action being taken against sexual harassment only pertains to a man being involved in the offence, which ingredient has to be factored in while appreciating the connotation of “sexual harassment” under the Act.
The petitioner also relied upon Vishaka & Ors. –vs- State of Rajasthan & Ors. 1997(7) JT 384, the judgement which was the point of inception for the POSH Act as the Vishaka guidelines laid out by the Supreme Court were the basis of the POSH Act. It was submitted that as per the said judgment, the meaning and contents of the fundamental rights guaranteed in the Constitution of India are of sufficient amplitude to encompass all the facets of gender equality, including prevention of sexual harassment or abuse. Thus, the question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the Act and since the gender of the complainant and the respondent is the same, the question of the Act being invoked does not arise, argued the petitioner.
The court, after hearing arguments, held that there is nothing in the Act to preclude a same-gender complaint. “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,” observed the court.
The court held that the definition of sexual harassment under the Act “cannot be a static concept but has to be interpreted against the back-drop of the social perspective” and it “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”.
In what can be considered a landmark opinion voiced in the backdrop of the progression of the society, the court held that “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”.
The court thus held that the complaint of sexual harassment at workplace against the same sex was maintainable and dismissed the petition. The court directed that the concerned authorities may proceed with the complaint as the court had not looked into the merits of such complaint and hence the process should not be influenced by any observations made by the court.
The complete order may be read here.
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