KERALA HC: MERE GENDER BASED DISCRIMINATION IS NOT ‘SEXUAL HARASSMENT’ UNDER POSH ACT

A Division Bench of the Hon’ble High Court of Kerala in the matter of Dr. Prasad Pannian v. Central University of Kerala[1] ruled that mere discrimination against women at workplace based on gender will not constitute ‘sexual harassment’ under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘the Act’).

This observation was made by the Court while dealing with a reference from a Single Judge bench that recommended that the prior judgment of the High Court in Anil Rajagopal v. State of Kerala and Others (2017 (5) KHC 217) needed reconsideration.   In Anil Rajagopal’s case, the High Court held that if there is no sexual harassment complained of, a solitary allegation of any or all of the acts enumerated under S.3(2) cannot constitute an offence under the Act.

The Single Judge, in the reference order, while disagreeing with the view, opined that acts enumerated in both Sections 2(n) and 3(2) of the Act are behaviour that could amount to sexual harassment. The act or behavior provided in Section 2(n) were not exhaustive but is an inclusive definition, and Section 3 adds to some more circumstances which can be termed as sexual harassment. He further opined that discriminatory behaviour on the basis of sex would also have to be included within the definition of sexual harassment and both the provisions require to be construed having regard to the legislative intent behind the Act.

The Petitioner contended that the provisions of the Act cannot be given a wide interpretation as envisaged by the learned Single Judge and 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. A mere difference in sex between two individuals cannot give rise to a sexual harassment even though there might be harassment. It was also argued that the provisions of the Act have to be given a strict interpretation since any action pursuant to a complaint of sexual harassment will affect the reputation and integrity of the opposite sex and such acts may lead to penal consequence as well.

The respondent on the other hand argued that the definition of sexual harassment in the Act itself is not exhaustive, whereas it is inclusive in nature. Therefore, 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.

After perusal of the provisions of the Act, the Division Bench agreed with the single-judge’s finding that the definition of sexual harassment was inclusive and not exhaustive. It ruled that the acts specified in the Act were only illustrative, particularly because the words ‘including’ and ‘among other circumstances’ had been used in Sections 2(n) and 3 of the Act.

However, agreeing with the view adopted by the High Court in Anil Rajagopal’s case, the Court observed that there was no need to reconsider the said decision. The Court further clarified that 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 will not apply.

[1] WP(C). No. 9219 of 2020(B)