“Society as whole benefits immeasurably from a climate in which all persons, regardless of race or gender, may have the opportunity to earn respect, responsibility, advancement and remuneration based on ability.” -Sandra Day O’Connor, Former Associate Justice of the Supreme Court of the United States
The judiciary plays an important role in the interpretation and application of the laws prescribed in the constitution. The legislature drafts the laws. Meanwhile, the judiciary implements the laws. It delivers justice while upholding the principles of equity, justice, and good conscience. Time and again, the Indian Constitution, through the judiciary, has interpreted the laws to uplift society.
The High Court of Calcutta in the case of Dr Malabika Bhattacharjee v. Internal Complaints Committee Vivekananda College & Ors. held that the same-gender Sexual Harassment complaints are maintainable under the POSH Act.
Gender equality acquires primacy in deciding whether a complaint falls within the periphery of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013.
Essentially the judgement means the following things:
1. The respondent can be of the same gender as the complainant. However, it is not explicitly clarified if the complainant can be of any gender other than a woman.
“It was argued by the IC that the definition of ‘respondent’ under the UGC 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 rigours of the regulations, which govern the present parties as well. Further, Section 2(m) of the PoSH Act also does not indicate a specific gender and therefore the complaint was sustainable.”
The court observed that Section 2(m) of the 2013 Act shows that the term “respondent” brings within its fold “a person”, thereby including persons of all genders. 2. “Sexual harassment” in Section 2(n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective. This means the court has made an attempt to understand the gender-neutral space that the Indian society is moving towards. The court has also tried to amplify the reach and protection of the Act throughout the gender spectrum.
What does this mean for our ICCs?
While the committees can now start taking a more gender-neutral approach, it’s important to understand that the “same-gender” approach highlights that a woman can also be a respondent. Hence, women on women sexual harassment cases are to be covered under the law.
Gender neutrality is still up for debate as we understand from the name of the law that it has been created for women. In the future, any occurrences of cases of women harassing men being covered under PoSH can be understood further only when the courts take up the matter.
Takeaways from the Internal Committee
- A recent case handled by the High Court of Calcutta recognized a woman as a respondent in a case of sexual harassment against another woman
- While your company has a gender neutral PoSH policy, it is yet to be decided by the court if a complainant can be of any gender other than a woman
- Any learnings about complainants belonging to other genders can be understood only when courts take up such cases