landmark same-gender PoSH case

Everything you need to know about the landmark same-gender PoSH case

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A few weeks ago, the Calcutta High Court passed a landmark judgement regarding sexual harassment. 

In the case of Dr Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College, the court declared that same-gender complaints are valid under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the PoSH Act.

Let’s find out more about what the case was, how the court reached its judgement, and what this means for workplace safety. 

same-gender complaints

What is the PoSH act?

The POSH Act was enacted in 2013 with the objective of preventing and protecting women against workplace sexual harassment. The Act also ensures that any harassment complaint is effectively redressed.

The Act defines sexual harassment as any unwanted sexual conduct which demeans, humiliates or creates a hostile and intimidating environment and induces submission by actual or threatened adverse consequences. 

Such acts include: 

– Unwelcome physical, verbal, or non-verbal conduct of sexual nature 

– Demand or request for sexual favours

– Making sexually colored remarks

– Physical contact and advances

– Showing pornography

– Promise of preferential treatment in return for sexual favours

– Threat of detrimental treatment

– Threat about the present or future status of the person

– Creating an intimidating, offensive, or hostile learning environment

– Humiliating treatment likely to affect the health, safety dignity or physical integrity of the person

In 2016, University Grants Commission (Prevention, prohibition and redressal of sexual harassment of women employees and students in higher educational institutions) Regulations, 2015 was notified by the University Grants Commission under the Ministry of Human Resource Development. This means that the PoSH law is also applicable to all higher educational institutions in India.

About the case

This case was a writ petition which challenged the action of Vivekananda college’s Internal Complaints Committee which accepted a complaint of sexual harassment against the petitioner. The petition maintained that entertaining the complaint was not lawful as both the complainant and the respondent belonged to the same gender. 

Advocate Soumya Majumder, the petitioner’s counsel, argued that the PoSH Act was not created to address same-gender complaints. But Advocate Kallol Basu, the private respondent’s counsel, referred to the UGC Act to argue that the regulations are broad enough to cover allegations of same-gender sexual harassment too. 

The Court also observed that Section 2(m) of the 2013 Act shows that the term “respondent” refers to “a person”, which includes people of all genders.

How did the court come to its conclusion?

Though the High Court agreed with the petitioner’s argument that the definition of ‘respondent’ has to be read with the rest of the statute, it said that “there is nothing in Section 9 of the 2013 Act to preclude a same-gender complaint under the Act”.

The court went on to say that although it is a bit odd to hear complaints of sexual harassment within the same gender, it is not improbable. Especially given how dynamic the Indian society is, and how even same-gender marriages are sought to be legalized, Indian citizens should be protected against same-gender sexual harassment too.

Sexual harassment is not a static concept

The Court also noted that the definition of “sexual harassment” cannot be a static concept but has to be interpreted against the backdrop of the social perspective.

Sexual harassment, as contemplated in the 2013 Act, pertains to the dignity of a person regarding her/his gender and sexuality. This does not mean that a person cannot hurt the modesty or dignity of someone of the same gender.

“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 added.

This thoughtful, progressive, and deeply humane judgement is great news as it signals an evolving, inclusive, and robust legislature!


The above insights are a product of our learning and advisory at Lawcubator. Write to us at support@lawcubator.com for queries, feedback or consultation of PoSH.

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