Ker HC | Will provisions of POSH, 2013 cover only an express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it under its umbrella? Let’s read what HC says

Kerala High Court: The Division Bench of A.M. Shaffique and Gopinath P., JJ., while observing a matter in regard to sexual harassment at workplace stated that,

In order to take action under the 2013 Act, the acts complained of should come within the purview of Section 2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour.

The substantial issue that was raised in the petitions was:

Whether a complaint given by respondent 8 can be the basis of an enquiry under the provisions of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.

Petitioner submitted that the allegations in the above-stated complaint did not disclose any form of sexual harassment coming within the purview of the 2013 Act.

Analysis and Decision

Bench observed that there is no dispute to the fact that sexual harassment of women at workplace results in a violation of fundamental rights of equality, enshrined under Articles 14 and 15 of the Constitution of India and her right to live with dignity under Article 21 of the Constitution.

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was formulated to ensure a safe environment free from sexual harassment for women.

Further, the Court noted that apparently it is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at sub-clauses (i) to (v).

Sub-clauses (i) to (v) are only instances of unwelcome acts or behaviour, but while interpreting a statute, we will have to derive the meaning of the word “sexual harassment” taking into account sub-clauses (i) to (v) as well.

In view of the above, Court stated 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.

Further, in regard to Section 3, it is stated that the said Section creates prohibition to subject a woman to sexual harassment at the workplace.

Section 3(2) emphasises on any act or behaviour of sexual harassment.

A bare reading of sub-section (2) indicates that the circumstances mentioned in clauses (i) to (v) are not exhaustive. The words ‘among other circumstances’ clarifies the said position. Any such circumstances, if it occurs, or is present in relation to or connected with any act or behaviour of sexual harassment alone can be treated as sexual harassment.

A purport of Section 3(2) is that, if any of the eventualities mentioned under clauses (i) to (v) or any other circumstances occur, it should be in relation to or connected with any act or behaviour of sexual harassment.

Hence, in order to constitute sexual harassment, there should be an attempt on the part of the wrongdoer to do some act which was unwelcome or by way of behaviour, either directly or by implication makes the victim feel that it amounts to sexual harassment.

Supreme Court’s decision in Visakha v. State of Rajasthan, (1997) 6 SCC 241, came into light at a when there was no statutory provision to provide for the effective enforcement of gender equality and guarantee against sexual harassment and abuse, more particularly against sexual harassment at workplaces.

In the above decision of the Supreme Court, strict guidelines to be followed at workplaces were formulated for the preservation and enforcement of the right to gender equality of working women.

After the above-stated decision, the 2013 Act came into force, which provided for taking disciplinary action against such persons involved in sexual harassment of women at any workplace and also the penal consequences thereof.

A reading of the above-stated statute clearly envisages a complaint involving sexual harassment.

Court also stated that the 2013 Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment in the workplace.

Considering the above discussion, Court held 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.

[Dr Prasad Pannian v. Central University of Kerala,  2020 SCC OnLine Ker 6550, decided on 02-12-2020]


Advocates who appeared for the matter:

Surya Binoy, Advocate — Petitioner

Sri V. Sajith Kumar, SC, Central University of Kerala.

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