Introduction
Social perspectives have an inevitable role to play in the genesis of laws. The letter of the law and its execution has been stained by the indelible marks of gender inequality and its prolonged history. In this context, a gender based perception of victims and offenders is discernible. “Sexual harassment” is one of such concept where men as victims and women as offenders are not immediately assumed while analysing a case. However, static fixation to past notions of victim and offender roles based on gender threatens the very essence of justice. In this regard, the present article seeks to analyse the judgment of the Calcutta High Court in the case of Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College & Ors [i]in light of the present legal structure against sexual harassment at workplace.
Concept
Catharine Mackinnon defines Sexual Harassment as “unwanted imposition of sexual requirements in the context of relationship of unequal power.”[ii] However, sexual harassment itself cannot be compartmentalised into certain actions and advances alone except as illustrations. It is largely based on what has been perceived as unwelcome by the subject of sexual harassment and the perception of harassment along with the resultant pain is a subjective and personal experience. Moreover, it is essential to note that such undesirable occurrences can also be experienced by persons of all genders. Despite its existence at workplaces, rarer cases of sexual harassment such as same-sex sexual harassment and equal opportunity harassment are largely unacknowledged.[iii] Even though the data available at present is scant and unfocused on severity of atypical sexual harassment, a clear vista can be obtained only after comprehensive collection of data. A stepping stone in addressing this issue is seen in the progressive verdict by the Calcutta High Court which has imbibed dynamism by recognising the wide ambit that can be ascribed to the word ‘Respondent’ in the case of Malabika Bhattacharjee v. ICC, Vivekananda College & Ors :
Contentions of the Parties
- Petitioner
The main contention of the Petitioner was that the Respondent Authorities have acted without jurisdiction by entertaining a complaint of alleged sexual harassment filed by the Private Respondent as both the Petitioner and the Private Respondent are of the same gender. Moreover, the public vilification and defamation alleged by the Private Respondent does not fall within the ambit of Section 2(n) and Section 3(2) of the Sexual Harassment Act (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act, 2013”).
The Petitioner further stated that the action to be taken under Section 19(h) of the POSH Act, 2013 cannot be invoked in the instant case. The rationale behind it’s inapplicability lies in the fact that penalising of alleged sexual harassment under the Indian Penal Code, 1860 requires the perpetrator to be a man. The Petitioner sought to impress upon the Court that the essence of the interpretation found in the Indian Penal Code must form a beacon while giving effect to the provisions of the POSH Act, 2013.
Further, reliance was placed on the circumstances and the necessity for statutory evolution witnessed during Vishaka & Ors. v. State of Rajasthan[iv] which ultimately laid the foundation for the formation of the POSH Act, 2013. Upon delving into its historical roots, the object of the Statute can be clearly identified to be prevention of and protection from sexual harassment against women at all workplaces.
2. Respondent
The Private Respondent and Respondent Authorities emphasised that the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 is wide enough to encompass Respondents of all genders within its ambit. The same is manifestly observed in the expression “his/her reply” envisaged under Regulations 8(2). Further, Section 2(m) of the POSH Act, 2013 defines ‘Respondent’ as “a person against whom the aggrieved woman has made a complaint under Section 9”.
Judgement
The Honourable Court observed that the definition of ‘Respondent’ does not restrict the application of the Act to any particular gender. Further, upon undertaking a holistic view of the statute, the Complaint of Sexual Harassment as described under Section 9 of the POSH Act, 2013 also does not confine the scope of making a complaint against a person of the same gender. Furthermore, the definition of Sexual Harassment under Section 2(m) of the Act is dynamic and is ever-evolving with changing societal trends. Therefore, the acts set out under Section 3(2) of the POSH Act, 2013 are capable of being perpetrated by members of any gender including persons of same gender inter se.
Critical Analysis
There are two main pillars that support the need for gender equality in cases of sexual harassment at workplace:
1. Firstly, the need for dynamism is conspicuous in the society as it witnesses a progressive wave through the decriminalisation of Section 377 of the Indian Penal Code, 1860 and the contemplation of granting legal status to same sex marriage. However, the possibility of undesirable advances between people of the same gender had yet to be provided an express acknowledgement and legal remedy. It is pertinent to note that the POSH Act has been criticised for not providing any relief to male victims of sexual harassment. It is further exacerbated by the hesitation in reporting contributing to absence of a comprehensive centralised data of sexual harassment. The lack of data results in obtuse emotional responses to victims and slow legislative and judicial acceptance of rarer forms of sexual harassments. Gender-based distinction in recognition and extension of a remedy to a victim naturally restricts action against a perpetrator who is not a man. Further, it is simply inhumane to extend empathy and remedy only after ascertaining the gender of the accused and the accuser.
2. Secondly, the essence of legislation must be interpreted in the light of two main parameters namely the objective of the Statute and the need for revisiting its past interpretations in the light of emergence or discovery of novel developments. Even in the past, the Court has imbibed dynamism by widely interpreting the POSH Act, 2013 keeping in mind the chief objective of the legislation. This has been manifested in Maharashtra University of Health Sciences & Ors. v. Satchikitsa Prasarak Mandal,[v] where the jurisdiction of the grievance redressal forum set up by the Respondent university under the provisions of the Maharashtra University of Health Sciences Act, 1998 was challenged as complaints by non-approved teachers were not covered under the statute. The Honourable Supreme Court held that an interpretation of ‘teacher’ which nullifies the very object of establishing an effective mechanism for redressal of grievances of all the teachers at the workplace is bad in law. Further the wide scope in case of sexual harassment matters has been pertinently observed by the Honourable Supreme Court in Apparel Export Promotion Council v. Chopra,[vi] that the Fundamental Rights envisaged in the Constitution encompasses all the facets of gender equality including prevention of sexual harassment.
Conclusion
Therefore, it is heartening to note that the judgement rendered by the Calcutta High Court ignites a beacon of hope amidst the shadow of gender specific ideologies that is discernible in the letter and implementation of law. Both dynamism and the object of the statute advocate the need to establish a procedure that is devoid of gender bias. It is imperative to ensure a safe workplace as it is a haven for personal and organisational development wherein negative experiences such as sexual harassment result in a traumatic and demoralising impact on any person irrespective of the gender of the perpetrator and the victim.
[i] Malabika Bhattacharjee v. Internal Complaints Committee, W.P.A. (Cal.) 9141 of 2020.
[ii] CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 1(Yale University Press 1979).
[iii] Margaret S. Stockdale et al, The Sexual Harassment of Men – Evidence for a Broader Theory of Sexual Harassment and Sex Discrimination, 5(3) PSYCHOL. PUB. POL’Y & L. 630, 630-634 (1999).
[iv] Vishaka & Ors. v. State of Rajasthan, AIR 1997 SC 3011.
[v] Maharashtra University of Health Sciences & Ors. v. Satchikitsa Prasarak Mandal, AIR 2010 SC 1325.
[vi] Apparel Export Promotion Council v. Chopra, AIR 1999 SC 625.
Vrinda Bhandarkar, a 4th year student at SDM Law College, Karnataka.
Picture Credits: India CSR Network.
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