SEXUAL HARASSMENT COMPLAINTS AGAINST SAME GENDER IS MAINTAINABLE UNDER POSH ACT 2013 - Kolkata High Court

06th Sep 2018 was not an ordinary day. The day was very special for the LGBT+ community as the Hon'ble Supreme Court delivered a historical verdict decriminalising homosexuality by partially striking down Section 377 of Indian Penal Code. The significance of whole judgement can be surmised in the light of the statement made by Justice Indu Malhotra while reading the 50 page decision that “History owes an apology to the members of this community and their families, for the delay in providing redressal for the ignominy and ostracism that they have suffered through the centuries”.

LGBT rights in India have evolved in recent years. The central Govt has repealed its colonial-era laws that directly discriminated against homosexual and transgender identities and also explicitly interpreted Article 15 of the Constitution. However, many legal protections have not been provided for including same-sex marriage. So essentially speaking, the same-sex couples now have the legal right to cohabit and conduct their personal affairs without any fear of prosecution but are still denied equality of treatment in various aspects.

In this scenario, where legal rights of same sex couples growing, possibility of same sex - sexual harassment at work place cannot be ruled out and only expected to be more intriguing. When people hear “sexual harassment” most think of a man harassing a woman or a woman harassing a man. While opposite-sex harassment is common, it is not the only possibility. Sexual harassment between two people of the same sex happens more often that one may believe. Women and men may sexually harass others of the same sex in order to put them down, make them quit, threaten them, coerce them or harass them through ‘teasing’.   

It might seem a bit odd 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, even debating the issue as to whether same gender marriages may be legalized.

A recent judgement by the Kolkata High Court is set to open up a huge dialogue on the need for a gender-neutral laws on sexual harassment in India.  

Case Name - Dr Malabika Bhattacharjee Vs ICC, Vivekananda College & Others

Appeal No : WPA 9141/2000 - Kolkata High Court. 

Date of Order : 27 Nov 2020

The definition of “sexual harassment” in Section 2 (n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective. Sexual Harassment has to pertain to the dignity of a person, which relates to his/her gender and sexuality which does not mean that any person of the same gender cannot hurt the modesty or dignity. 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 irrespective of the sexuality and gender of the perpetrator of the act. 

Section 2 (m) of the Posh Act 2013, logically concludes that the term ‘respondent’ brings within its fold ‘a person’, thereby including persons of all genders. Also the said expression has to be read in conjunction with the rest of the statute as a whole, there is nothing in Section 9 of the Posh Act 2013 to preclude a same gender complaint under the act, the Hon’ble Court observed.

Accordingly, WPA 9141/2020 was dismissed in contest. 

The Kolkata HC while hearing the above case of Sexual harassment held that complaints of sexual harassment filed by individuals against person of the same gender will be accepted and tried under the Posh Act.