Thursday, 14 January 2021

Calcutta HC: Same-Gender Sexual Harassment Complaints are Maintainable Under POSH Act


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.

Although there is substance in the submission of

the petitioner that the said expression has to be read in

conjunction with the rest of the statue as a whole, there

is nothing in Section 9 of the 2013 Act [which has been

referred to in Section 2(m)] 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.

That apart, 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 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 context,

the language of Section 2(m), Section 2(n) and Section 3

of the 2013 Act is set out below:-

“2(m) “respondent” means a person against whom the

aggrieved woman has made a complaint under section 9;


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 dated

September 15, 2020 (Annexure P-5), is maintainable

under the 2013 Act. Hence, the complaint cannot be

turned down at the outset.

 IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

W.P.A. 9141 of 2020


Dr. Malabika Bhattacharjee Vs Internal Complaints Committe,

Vivekananda College & Ors.

Dated: 27.11.2020.


The petitioner contends that the respondent

authorities 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.

Learned counsel appearing for the petitioner places

reliance on a portion of the complaint, annexed at page

53 (Annexure P-5) of the writ petition, in particular

Clauses (iv) and (v), to stress the point that the

allegation of the private respondent revolved around

alleged vilifying and defaming the private respondent in

public. It is submitted that the act as alleged, could not

fall within the purview of “sexual harassment” as

contemplated in the Sexual Harassment of Women at

Workplace (Prevention, Prohibition and Redressal) Act,

2013.

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 also places reliance on Section

3(2) of the 2013 Act to argue that the acts stipulated

therein pre-suppose an act of “sexual harassment”

having been committed in the first place and thus

relate back to the definition of the said term in Section

2 (n).

The petitioner next argues that, as per Section

19(h) of 2013 Act, an employer shall cause to initiate

action, under the Indian Penal Code or any other law

for the time being in force, against the perpetrator, or if

the aggrieved women so desires where the perpetrator

is not an employee, in the workplace at which the

incident of sexual harassment took place. It is argued

that such an action, as envisaged under the Indian

Penal Code, 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 2013 Act.

Learned counsel for the petitioner also places

reliance upon Vishaka & Ors. –vs- State of

Rajashthan & Ors., reported at 1997(7) JT 384. It is

submitted that, since the said judgement was the

genesis of the 2013 Act, the concept of the 2013 Act

has to be read and interpreted in the light of the said

judgement. It was held therein, inter alia, that in the

absence of domestic law occupying the field, to

formulate effective measures to check the evil of sexual

harassment of working women at all workplaces, the

contents of International Conventions and norms are

significant for the purpose of interpretation of the

guarantee of gender equality, right to work with human

dignity in Articles 14, 15, 19(1)(g) and 21 of the

Constitution of India and the safeguards against sexual

harassment implicit therein. It is further 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.

Reading in such light, it is argued, the question of

gender equality acquires primacy in deciding whether a

complaint falls within the periphery of the 2013 Act. In

the present case, since the gender of the complainant

and the respondent is the same, the question of the Act

being invoked does not arise.

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.

This, read with the definition of “respondent” in

Section 2(m) of the 2013 Act, which contemplates “a

person” as a respondent, indicates clearly, according to

the private respondent, that same-gender allegations

can also be entertained under the 2013 Act.

Learned counsel appearing for the respondentauthorities

adopts the same argument and prays for the

writ petition to be dismissed.

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.

Although there is substance in the submission of

the petitioner that the said expression has to be read in

conjunction with the rest of the statue as a whole, there

is nothing in Section 9 of the 2013 Act [which has been

referred to in Section 2(m)] 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 samegender

marriages may be legalized.

That apart, 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 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 context,

the language of Section 2(m), Section 2(n) and Section 3

of the 2013 Act is set out below:-

“2(m) “respondent” means a person against whom the

aggrieved woman has made a complaint under section 9;

2(n) “sexual harassment” includes any one or more of

the following unwelcome acts or behaviour (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;

3 Prevention of sexual harassment – (1) No woman

shall be subjected to sexual harassment at any

workplace.

(2) The following circumstances, among other

circumstances, if it occurs or is present in relation to or

connected with any act or behaviour 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 of her; or

(v) humiliating treatment likely to affect her

health or safety.

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 dated

September 15, 2020 (Annexure P-5), is maintainable

under the 2013 Act. Hence, the complaint cannot be

turned down at the outset.

Accordingly, W.P.A. 9141 of 2020 is dismissed on

contest.

However, it is made clear that the merits of the

allegations levelled by the private respondent against the

petitioner have not been gone into in any manner by this

court. It will be open to the appropriate authorities to

decide the matter independently, on its own merits,

without being influenced by the observations made

herein in any manner.

Since it is submitted by the petitioner that the

complainant’s cross-examination was closed in the

meantime, due to pendency of the writ petition, it is

further made clear that the authorities concerned shall

give a further opportunity to the petitioner to crossexamine

the complainant (private respondent) at the

earliest.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be supplied to the parties, upon compliance

of all necessary formalities.

( Sabyasachi Bhattacharyya, J.)


Print Page

No comments:

Post a comment