'Aggrieved Woman' Not Covering LGBTQIA Persons : Supreme Court Refuses Plea To Make Its Sexual Harassment Regulations Gender-Neutral

In a significant legal development, the Supreme Court refused to entertain a plea seeking amendments in Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 for making the same to be gender neutral. The amendments were sought in view to bring the constitutional rights of other persons such as LGBTQIA+ persons under the umbrella of these Regulations.

Imperatively, these Regulations were framed following enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and were notified by the Top Court in the same year.

Amongst the directions sought, replacement of the definition of “aggrieved woman” with “aggrieved persons” was also requested.

However, the Bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan held that the purpose of these Regulations are to protect an ‘aggrieved women’ in the workplace i.e. the Supreme Court of India.

“We are of the view that it would be inappropriate to direct the aforesaid amendments to be made to the 2013 Regulations as otherwise the whole purpose and object of the said Regulations would be diluted and denuded of its effect.,” the Court added.

The application was filed by Senior Advocate Vibha Datta Makhika.

Senior counsel Vibha Datta Makhija, appearing as party-in-person, submitted that the regulations are “are wholly inadequate” to include LGBTQIA+ persons and thus sought for amendment while also underscoring the need to make these regulations inclusive.

She mainly relied upon the celebrated case of National Legal Services Authority (NALSA) vs. Union of India, (2014) 5 SCC 348.

Other Directions Sought

Apart from the one mentioned above, a slew of other directions were also sought. They were:

1. “sexual harassment” be defined in gender-neutral terms;
2. Regulations be amended to ensure that they permit persons of all gender to avail the remedy;
3. Formulation of a committee to assess the adequacy of the present functioning of the Regulations apropos sensitization activities and recommend changes required in the Regulations to increase the frequency, scope and entities thereof.

Court’s Reasoning

At the outset, the Court observed that the existing Regulations are to protect an ‘aggrieved woman’ in the workplace i.e. the Supreme Court of India. The Court also noted that these regulations were enacted in terms of Article 15(3) of the Constitution which talks about special provision for women.

Notably, the Court acknowledged that the definition of “aggrieved woman” would not cover a LGBTQIA+ person.

“If such a person suffers sexual harassment, according to the petitioner, who has appeared in-person, there are no Regulations as such where a remedy could be sought.,” the Court added.

However, the Court made it clear that the remedy does not lie by amending the existing Regulations. Following this, the Court also emphasised that if such amendments are carried out then “focus will be lost from the principal objective i.e., prevention of sexual harassment of women at the Supreme Court of India.”

The Court placed its reliance upon the decisions of State of Jammu & Kashmir vs. A.R. Zakki, 1992 Supp (1) SCC 548 and Union of India vs. K. Pushpavanam, 2023 SCC OnLine SC 987, to mark that a Constitutional Court would not issue a writ of mandamus to a legislature or to a rule making body to enact a particular legislation.

In this backdrop, Makhija withdrew this application and submitted that she would “make a representation to the Gender Sensitization Committee of the Supreme Court for formulation of another body of Regulations to cover persons belonging to the LGBTQIA+ Communities for their protection from sexual harassment in the workplace i.e. Supreme Court of India.”

Accordingly, the application was dismissed as withdrawn.

Case Title: BINU TAMTA & ANR. V. HIGH COURT OF DELHI & ORS., Miscellaneous Application No. 2308/2023 

Citation : 2023 LiveLaw (SC) 969

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