Can a person of the same gender be punished under the POSH Act?

Dr. Malabika Bhattacharjee

-versus

Internal Complaints Committe,

Vivekananda College & Ors.

W.P.A. 9141 of 2020

Calcutta High Court

Just like any other judgement, this judgement also triggers some aspect of law which needs a wide interpretation in terms of the law. In this judgement Calcutta HC while hearing a case of sexual harassment held that complaints of sexual harassment filed by individuals against persons of the same gender will be accepted under the POSH Act.

The moot question in the present petition was whether a complaint against the same gender (women in the present case) can be dealt with under the provisions of the Prevention of Sexual Harassment at Workplace Act, 2013 (POSH Act)

The Calcutta High Court held that,

“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.”

Although the Court stated that there was some substance in the petitioner’s argument that the term respondent must be read in line with the statute as a whole, the Court noted that there was nothing to exclude a same-gender complaint under the POSH Act.

The Court observed that the definition of Section 2(m) of the POSH Act defines “respondent”, it means a person against whom an aggrieved woman has made a complaint under section 9;

Section 2(n) defines sexual harassment

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

On the bare reading of both the provisions, it is clear that nothing precludes an aggrieved person to file a complaint against a woman, as the wording of Section 2(m) reads 'person' not a man'. Hence, the respondent can be any other person regardless of gender.

It’s important to note that the Court said that sexual harassment is not a static concept and needs to be interpreted keeping the current social context in mind.

Despite of above context, it was also seen that men are excluded as they could be aggrieved under POSH Act. This judgement is a hopeful sign that the judiciary could start the much-needed conversation about making gender-neutral laws on sexual harassment, rape and gender-based violence.

Conclusion

This judgement with UGC Guidelines combined turned out to be progressive steps for a much safe and more inclusive environment for people of all gender and sexuality. These sexual crimes shouldn't be restricted to a specific gender but according to our changing society, we should adopt the ideology of inclusiveness of other genders and sexuality as a whole.

To start with the change, we should acknowledge and actually start taking all persons into the purview of the law and provide a remedy as a whole.