CALCUTTA HC: SAME-GENDER SEXUAL HARASSMENT COMPLAINTS ARE MAINTAINABLE UNDER POSH ACT

The Calcutta High Court, in the matter of Dr. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College &Ors[1],  held that same-gender complaints are maintainable under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’).  

The primary contention of the petitioner in the matter was the respondent committee had acted without jurisdiction while 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 gender.  

The respondent’s counsel while placing reliance on of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 (‘Regulations’) submitted that the Regulations are broad enough to encompass 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 rigors of the Regulations. It was further argued by placing particular reliance on Regulation 8(2) that the expression “the respondents shall file his/her reply” used in the Regulation, brings within its purview both genders and therefore, the definition of ‘respondent’ in section 2(m) of the POSH Act which only contemplates ‘a person’ as a respondent, can also include both genders.  

The Court ruled that a cursory glance at Section 2(m) of the POSH Act Act shows that the term “respondent” brings within its fold “a person”, thereby including persons of all genders. The Court also observed that there is nothing in the Act to preclude a same gender complaint and that the definition of “sexual harassment” in Section 2(n) of the POSH Act cannot be a static concept but has to be interpreted against the back-drop of the social perspective. Sexual harassment, as contemplated in the POSH Act 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 

The Court further highlighted 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. The Court also emphasized that 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. 

The Court also emphasized that although it might seem a bit off 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.

[1] W.P.A. 9141 of 2020