Mere Discrimination On Ground Of 'Sex' Without Sexual Undertones Not 'Sexual Harassment' Under POSH Act: Kerala High Court

The Kerala High Court has held that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, does not contemplate a situation of discrimination on the basis of sex if there is no express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it 

The court observed that any form of sexual approach or behaviour that is unwelcome will come under the definition of 'sexual harassment' under the Act, the bench comprising Justices AM Shaffique and P. Gopinath observed while upholding a single bench judgment [ Anil Rajagopal v. State of  Kerala and Others [2017 (5) KHC 217].

The division bench was answering a reference from the single bench which opined that the judgment in Anil Rajagopal requires reconsideration to the extent it construed the provisions contained in Sections 2(n) and 3(2) of the Act, 2013. The petitioner's contention was that harassment can be meted out against an individual in different forms and only in instances where the harassment has an element of sexual advance in some form, it becomes a sexual harassment. It was contended that mere difference in sex between two individuals cannot give rise to a sexual harassment even though there might be harassment. On the other hand, the respondent contended that any form of sexual intimidation or discrimination or behaviour which tends to attract harassment only on account of difference in sex can also be characterized as sexual harassment.

Referring to Section 2(n) of the Act, the bench observed:

Apparently it is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at subclauses (i) to (v). There might be other instances as well. Any such behaviour which is unwelcome could be either direct or indirect. Sub-clauses (i) to (v) are only instances of unwelcome acts or behaviour, but while interpreting a statute, we will have to derive the meaning of the word "sexual harassment" taking into account sub-clauses (i) to (v) as well. Sub-clauses (i) to (v) are all illustrations. But when an allegation of sexual harassment is made, though not coming within the parameters as specified in sub-clauses (i) to (v), the act should have something to do with a sexual advance either directly or by implication. Going by the statute, only a few unwelcome acts had been delineated under sub-clauses (i) to (v). It is possible that there might be other   unwelcome acts or behaviour which would amount to a sexual advance or demand which the woman feels to be annoyed on account of the fact that she is a woman.

The court said that, in order to constitute sexual harassment, definitely there should be an attempt on the part of the wrongdoer to do some act which was unwelcome or by way of behaviour, either directly or by implication makes the victim to feel that it amounts to sexual harassment. Referring to Section 3, it said:

Section 3 creates an absolute prohibition to subject a women to sexual harassment at workplace. There also, sub-section (2) of Section 3 emphasises on any act or behaviour of sexual  harassment. Clauses (i) to (v) are instances which may occur in a workplace. But still, a bare reading of sub-section (2) indicates that the circumstances mentioned in clauses (i) to (v) are not exhaustive. The words 'among other circumstances' clarifies the said position. Any such circumstances, if it occurs, or is present in relation to or connected with any act or behaviour of sexual harassment alone can be treated as sexual harassment. In other words, any act which tends to affect the women in the form of clauses (i) to (v) in Section 3(2) would amount to sexual harassment only if such eventualities occur and should be in relation to or connected with any act or behavior of sexual harassment. The purport of Section 3(2) is that, if any of the eventualities mentioned under clauses (i) to (v) or any other circumstances occur, it should be in relation to or connected with any act or behaviour of sexual harassment.

The court also noted that the 2013 Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment in the workplace. Answering the reference, the bench observed:

"Therefore, the very concept of sexual harassment in a workplace against a woman should start from an express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it without which provisions of Act 2013 will not apply. In Anil Rajagopal (supra) also, this Court had while interpreting 2013 Act had arrived at the very same finding. . In the result, we do not think that Anil Rajagopal (supra) requires any reconsideration. We would only clarify that any form of sexual approach or behaviour that is unwelcome will come under the definition of 'sexual harassment' and it is not confined to any of the sub clauses mentioned in Section 2(n), which of course will depend upon the materials placed on record and on a case to case basis. But it is made clear that in order to take action under the 2013 Act, the acts complained of should come within the purview of S.2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour on the part of the respondent."

Case: DR.PRASAD PANNIAN vs. CENTRAL UNIVERSITY OF KERALA [WP(C).No.9219 OF 2020(B)] 
Coram: Justices AM Shaffique and P. Gopinath 
Counsel: SR. ADV. S. SREEKUMAR, ADV SURYA BINOY, for petitioner,  ADV V.SAJITH KUMAR, ADV REKHA VASUDEVAN for respondents.

Click here to Read/Download Judgment

Read Judgment