Complaints for Same-gender sexual harassment will now be maintained under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013aka. POSH Act. This judgment was passed by the Calcutta High Court in the case of Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College [WAPA 9141 of 2020] by the single bench of Hon’ble Justice Sabyasachi Bhattacharyya .
In the above cited case, a petition was filed challenging the action of the Internal Complaints Committee of an institution to accept a complaint under the Act without jurisdiction on the ground that both the complainant and the respondent belonged to the same gender.
It was argued from the Petitioner’s side that POSH Act doesn’t conceive to address the same- gender complaints, and on the other hand, Respondent’s counsel had argued that such complaints are covered under University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institution, so they can be maintained under POSH Act as well.
For getting a solution out of all the arguments, HC contended that “there is nothing in Section 9 of the 2013 Act to preclude a same-gender complaint under the Act”.
HC observed that concept of Sexual Harassment is not static and it must be interpreted in a different manner against the back drop of the social perspective.
It was noted that in the POSH Act, 2013 “Sexual Harassment” as term has been pertained to the dignity of the person related to his/her sexuality and gender and the people of the same gender are no different and hence, cannot be excluded.
HC opined that “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 Section2(n), irrespective of the sexuality and gender of the perpetrator of the act”.
And therefore, it was decided that “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“.
