In a major decision, the Calcutta High Court stated that under the Sexual Assault with Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, widely mentioned as the POSH Act, same-gender grievances are maintainable.
As contemplated in the 2013 Act, sexual assault must contribute to the privacy of someone due to their gender and sexuality preferences, which does not mean that someone of the same sex should not harm an individual’s modesty or dignity as envisaged by the 2013 Act, HC said.
The Court noted that Section 2(m) of the 2013 Act indicates the word “respondent” includes “a person” within its fold, thereby including persons of Both sexes.
In the case of Dr. Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College, and others, the bench of single Justice Sabyasachi Bhattacharyya released the verdict.
The case was a written petition opposing the decision taken by the institution’s Internal Disputes Committee to consider a lawsuit under the Act as being beyond authority on the basis that both the plaintiff and the respondent were of the same sex.
Advocate Soumya Majumder, the petitioner’s lawyer, argued that the Act was not meant to resolve same-gender grievances. On the other side, Advocate Kallol Basu, the lawyer of the private respondent, referred to the University Grants Commission Regulation 2015 (Prevention, Prohibition and Resolution of Sexual Abuse of Women Workers and Students in Higher Education Institutions). To claim that the laws are broad enough to encompass same-gender sexual abuse complaints. The respondent’s lawyer, taking a lead from the UGC legislation, submitted that such grievances are indeed maintainable under the POSH Act.
Nothing in the POSH Act prevent same gender complaint
Although the judicature noted that the petitioner’s contention that the meaning of “respondent” must be interpreted in accordance with the remainder of the law was “some substance,” it stated that “There is nothing in Section 9 of the 2013 Act that may preclude an objection under this Act of the same gender.” “While it can seem unusual at first instance that people of the same gender are complaining against each other over sexual abuse, it is not probable, particularly in the case of sexual assault it is difficult to understand by Indian society, to even debate whether same-gender marriages can be legalized,” the High Court said.
‘Sexual Harassment’ cannot be a steady idea
Furthermore, the Court noted that the definition of “sexual harassment” in Section 2(n) cannot be a static term but must be interpreted against the definition of sexual harassment the social viewpoint back-drop.
Sexual abuse, as provided for in the Act of 2013, would also apply to the privacy of a person due to his/her gender and sexuality, which does not mean that any person of the same sex will not be affected.’
Where her/his modesty or integrity as a member of the said gender is violated by any of the offences, as set out in Section 2(n), regardless of the sexuality and gender of the perpetrator of the act, a person of any gender may feel intimidated and sexually abused, the Court added. Furthermore, the Court held: “If Section 3(2) is focusing into, it is seen that the acts examine thereof can be carried out by the members of any gender even inter se.”