Same –gender sexual harassment cases will be dealt under POSH Act: Calcutta High Court

 SL 07 27.11.2020 m.b .d.p IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION W.P.A. 91420 Through Video Conference Dr. Malabika Bhattacharjee Internal Complaints Committe Vivekananda College & Ors Mr. Soumya Majumder Mr. Debashis Banerjee Mr. Subrata Saha …For the Petitioner Mr. Kallol Basu Mr. Suman Banerjee …For the Respondent No.5 Mr. Prabir Kumar Ghosh …For the Respondent Nos 1 to 4 Mr. Mit Guha Roy …For the Respondent Nos 3 and 4 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 Learned counsel appearing for the petitioner places reliance on a portion of the complaint annexed at page 53 of the writ petition in particular Clauses and 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 Act Mr. Soumya Majumder 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 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 Regulations 2015 and submits the said Regulations are broad 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 respondent authorities 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 Actto 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 2(n) “sexual harassment” includes any one or more of the following unwelcome acts or behaviour namely: physical contact and advances or a demand or request for sexual favours or iii) making sexually coloured remarks or showing pornography or any other unwelcome physical verbal or non verbal conduct of sexual nature 3 Prevention of sexual harassment No woman shall be subjected to sexual harassment at any 2) The circumstances among 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: implied or explicit promise of preferential treatment in her employment or implied or explicit threat of detrimental treatment in her employment or implied or explicit threat about her present or future employment status or interference with her work or creating an intimidating or offensive or hostile work humiliating treatment likely to affect her environment of her or 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 the complaint dated September 15 2020 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 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 cross examine the complainant at the 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

Summary: Complaints for Same-gender sexual harassment will now be maintained under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013aka. POSH Act. This judgment was passed by the Calcutta High Court in the case of Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College [WAPA 9141 of 2020] by the single bench of Hon’ble Justice Sabyasachi Bhattacharyya . In the above cited case, a petition was filed challenging the action of the Internal Complaints Committee of an institution to accept a complaint under the Act without jurisdiction on the ground that both the complainant and the respondent belonged to the same gender. It was argued from the Petitioner’s side that POSH Act doesn’t conceive to address the same- gender complaints, and on the other hand, Respondent’s counsel had argued that such complaints are covered under University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institution, so they can be maintained under POSH Act as well. For getting a solution out of all the arguments, HC contended that “there is nothing in Section 9 of the 2013 Act to preclude a same-gender complaint under the Act”. HC observed that concept of Sexual Harassment is not static and it must be interpreted in a different manner against the back drop of the social perspective. It was noted that in the POSH Act, 2013 “Sexual Harassment” as term has been pertained to the dignity of the person related to his/her sexuality and gender and the people of the same gender are no different and hence, cannot be excluded. HC opined that “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”.