Kerala HC Division Bench of JusticesAM Shaffique and P Gopinath emphasized in the case of Dr.Prasad Pannian v. Central University of Kerala that any form of sexual approach or behaviour that is unwelcome and having a sexual undertone will come under the definition of ‘sexual harassment’ under POSH Act.
The court observed that mere discrimination against women at workplace based on gender will not constitute the offence of ‘sexual harassment’ under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). It also added that there should be express or implied sexual advance or undertone for the provisions of the POSH Act to apply.
The court further ruled 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 2013 will not apply.”
The division bench was hearing the reference from the single bench which pointed that the provisions Sections 2(n) and 3(2) of the Act, 2013 list behaviours that could amount to sexual harassment in the case of Anil Rajagopal v. State of Kerala and Others.
The single-judge of Kerala HC also opined that discriminatory behaviour on the basis of sex would also have to be included within the definition of sexual harassment. The POSH Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment at workplace.
The petitioners in the case contended that only harassment that had an element of a sexual advance could be construed as sexual harassment. The mere fact that the accused and the harassed are from opposite sex would not result in sexual harassment. Therefore, plainly discriminatory behaviour could not be included within the purview of sexual harassment.
The court also said that it is possible that there might be other unwelcome acts or behaviour which would amount to a sexual advance or demand which the woman feels to be annoyed on account of the fact that she is a woman.
Division bench agreed with single bench reference from Rajagopal case and observed that there was no need to reconsider the said decision.
the bench lastly explained that- “We would only clarify that any form of sexual approach or behaviour that is unwelcome will come under the definition of ‘sexual harassment’ and it is not confined to any of the sub clauses mentioned in Section 2(n), which of course will depend upon the materials placed on record and on a case to case basis. But it is made clear that in order to take action under the 2013 Act, the acts complained of should come within the purview of S.2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour on the part of the respondent.”