A cursory glance at Section 2(m) of the 2013 Act
shows that the term “respondent” brings within its fold
“a person”, thereby including persons of all genders.
Although there is substance in the submission of
the petitioner that the said expression has to be read in
conjunction with the rest of the statue as a whole, there
is nothing in Section 9 of the 2013 Act [which has been
referred to in Section 2(m)] to preclude a same-gender
complaint under the Act. Although 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.
That apart, the definition of “sexual harassment”
in Section 2(n) cannot be a static concept but has to be
interpreted against the back-drop of the social
perspective. Sexual harassment, as contemplated in the
2013 Act, thus, has to pertain to the dignity of a
person, which relates to her/his gender and sexuality;
which does not mean that any person of the same
gender cannot hurt the modesty or dignity as envisaged
by the 2013 Act. 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 Section
2(n), irrespective of the sexuality and gender of the
perpetrator of the act.
If Section 3(2) is looked into, it is seen that the
acts contemplated therein can be perpetrated by the
members of any gender, even inter se. In such context,
the language of Section 2(m), Section 2(n) and Section 3
of the 2013 Act is set out below:-
“2(m) “respondent” means a person against whom the
aggrieved woman has made a complaint under section 9;
In such view of the matter, the act alleged by the
private respondent to have been perpetrated by the
petitioner, as evident from the complaint dated
September 15, 2020 (Annexure P-5), is maintainable
under the 2013 Act. Hence, the complaint cannot be
turned down at the outset.
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
W.P.A. 9141 of 2020
Dr. Malabika Bhattacharjee Vs Internal Complaints Committe,
Vivekananda College & Ors.
Dated: 27.11.2020.
The petitioner contends that the respondent
authorities acted without jurisdiction in entertaining a
complaint on alleged sexual harassment against the
petitioner on the complaint of the private respondent,
despite the fact that both of them are of the same
gender.
Learned counsel appearing for the petitioner places
reliance on a portion of the complaint, annexed at page
53 (Annexure P-5) of the writ petition, in particular
Clauses (iv) and (v), to stress the point that the
allegation of the private respondent revolved around
alleged vilifying and defaming the private respondent in
public. It is submitted that the act as alleged, could not
fall within the purview of “sexual harassment” as
contemplated in the Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act,
2013.
Mr. Soumya Majumder, Learned counsel
appearing for the petitioner places particular reliance
on the definition of “sexual harassment” in Section 2(n)
of the said Act and seeks to impress upon the Court
that the acts contemplated therein have no nexus with
the present complaint.
Learned counsel also places reliance on Section
3(2) of the 2013 Act to argue that the acts stipulated
therein pre-suppose an act of “sexual harassment”
having been committed in the first place and thus
relate back to the definition of the said term in Section
2 (n).
The petitioner next argues that, as per Section
19(h) of 2013 Act, an employer shall cause to initiate
action, under the Indian Penal Code or any other law
for the time being in force, against the perpetrator, or if
the aggrieved women so desires where the perpetrator
is not an employee, in the workplace at which the
incident of sexual harassment took place. It is argued
that such an action, as envisaged under the Indian
Penal Code, only pertains to a man being involved in
the offence, which ingredient has to be factored in while
appreciating the connotation of “sexual harassment”
under the 2013 Act.
Learned counsel for the petitioner also places
reliance upon Vishaka & Ors. –vs- State of
Rajashthan & Ors., reported at 1997(7) JT 384. It is
submitted that, since the said judgement was the
genesis of the 2013 Act, the concept of the 2013 Act
has to be read and interpreted in the light of the said
judgement. It was held therein, inter alia, that in the
absence of domestic law occupying the field, to
formulate effective measures to check the evil of sexual
harassment of working women at all workplaces, the
contents of International Conventions and norms are
significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human
dignity in Articles 14, 15, 19(1)(g) and 21 of the
Constitution of India and the safeguards against sexual
harassment implicit therein. It is further submitted
that, as per the said judgment, the meaning and
contents of the fundamental rights guaranteed in the
Constitution of India are of sufficient amplitude to
encompass all the facets of gender equality, including
prevention of sexual harassment or abuse.
Reading in such light, it is argued, the question of
gender equality acquires primacy in deciding whether a
complaint falls within the periphery of the 2013 Act. In
the present case, since the gender of the complainant
and the respondent is the same, the question of the Act
being invoked does not arise.
Mr. Kallol Basu, learned counsel appearing for the
private respondent argues on the basis of the University
Grants Commission (Prevention, Prohibition and
Redressal of Sexual Harassment of Women Employees
and Students in Higher Educational Institutions)
Regulations, 2015 and submits that the said
Regulations are broad enough to encompass
respondents of all genders, implicitly meaning that the
gender of the complainant and the respondents can
very well be the same in order to attract the rigours of
the Regulations, which govern the present parties as
well. By placing particular reliance on Regulation 8(2),
learned counsel for the private respondent argues that
the expression “the respondents shall file his/her reply”
has been used therein, thereby bringing within its
purview respondents of both genders.
This, read with the definition of “respondent” in
Section 2(m) of the 2013 Act, which contemplates “a
person” as a respondent, indicates clearly, according to
the private respondent, that same-gender allegations
can also be entertained under the 2013 Act.
Learned counsel appearing for the respondentauthorities
adopts the same argument and prays for the
writ petition to be dismissed.
A cursory glance at Section 2(m) of the 2013 Act
shows that the term “respondent” brings within its fold
“a person”, thereby including persons of all genders.
Although there is substance in the submission of
the petitioner that the said expression has to be read in
conjunction with the rest of the statue as a whole, there
is nothing in Section 9 of the 2013 Act [which has been
referred to in Section 2(m)] to preclude a same-gender
complaint under the Act. Although 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 samegender
marriages may be legalized.
That apart, the definition of “sexual harassment”
in Section 2(n) cannot be a static concept but has to be
interpreted against the back-drop of the social
perspective. Sexual harassment, as contemplated in the
2013 Act, thus, has to pertain to the dignity of a
person, which relates to her/his gender and sexuality;
which does not mean that any person of the same
gender cannot hurt the modesty or dignity as envisaged
by the 2013 Act. 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 Section
2(n), irrespective of the sexuality and gender of the
perpetrator of the act.
If Section 3(2) is looked into, it is seen that the
acts contemplated therein can be perpetrated by the
members of any gender, even inter se. In such context,
the language of Section 2(m), Section 2(n) and Section 3
of the 2013 Act is set out below:-
“2(m) “respondent” means a person against whom the
aggrieved woman has made a complaint under section 9;
2(n) “sexual harassment” includes any one or more of
the following unwelcome acts or behaviour (whether directly
or by implication) namely:-
(i) physical contact and advances; or
(ii) a demand or request for sexual favours; or
(iii) making sexually coloured remarks; or
(iv) showing pornography; or
(v) any other unwelcome physical, verbal or
non-verbal conduct of sexual nature;
3 Prevention of sexual harassment – (1) No woman
shall be subjected to sexual harassment at any
workplace.
(2) The following circumstances, among other
circumstances, if it occurs or is present in relation to or
connected with any act or behaviour of sexual
harassment may amount to sexual harassment:-
(i) implied or explicit promise of preferential
treatment in her employment; or
(ii) implied or explicit threat of detrimental
treatment in her employment; or
(iii) implied or explicit threat about her present
or future employment status; or
(iv) interference with her work or creating an
intimidating or offensive or hostile work
environment of her; or
(v) humiliating treatment likely to affect her
health or safety.
In such view of the matter, the act alleged by the
private respondent to have been perpetrated by the
petitioner, as evident from the complaint dated
September 15, 2020 (Annexure P-5), is maintainable
under the 2013 Act. Hence, the complaint cannot be
turned down at the outset.
Accordingly, W.P.A. 9141 of 2020 is dismissed on
contest.
However, it is made clear that the merits of the
allegations levelled by the private respondent against the
petitioner have not been gone into in any manner by this
court. It will be open to the appropriate authorities to
decide the matter independently, on its own merits,
without being influenced by the observations made
herein in any manner.
Since it is submitted by the petitioner that the
complainant’s cross-examination was closed in the
meantime, due to pendency of the writ petition, it is
further made clear that the authorities concerned shall
give a further opportunity to the petitioner to crossexamine
the complainant (private respondent) at the
earliest.
There will be no order as to costs.
Urgent photostat certified copy of this order, if
applied for, be supplied to the parties, upon compliance
of all necessary formalities.
( Sabyasachi Bhattacharyya, J.)
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