In a significant verdict, the Calcutta High Court has held 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.
The Court observed that Section 2(m) of the 2013 Act shows that the term "respondent" brings within its fold "a person", thereby including persons of all genders.
The verdict was given by a single bench of Justice Sabyasachi Bhattacharyya in the case Dr. Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College and others.
The case was a writ petition which challenged the action of the Internal Complaints Committee of an institution to accept a complaint under the Act as without jurisdiction on the ground that both the complainant and the respondent belonged to the same gender.
The petitioner's counsel, Advocate Soumya Majumder, argued that the Act was not conceived to address same-gender complaints. On the other hand, the private respondent's counsel, Advocate Kallol Basu, referred to the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions)Regulations, 2015 to argue that the regulations are broad enough to cover even allegations of same-gender sexual harassment. Taking a cue from the UGC regulations, the respondent's counsel submitted that such complaints are maintainable under the POSH Act as well.
Nothing in the POSH Act precludes same gender complaint
Though the High Court said 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 High Court said.
'Sexual Harassment' cannot be a static concept
The Court further observed 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.
The Court further said : "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"