The Calcutta High Court in the case of ‘Dr. Malabika Bhattacharjee vs Internal Complaints Committee, Vivekananda College, and others’, held that same-gender sexual harassment complaints are maintainable under the Sexual Harassment of women at workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the POSH act, 2013.
The Court was of the view that Section 2(m) of the 2013 Act shows that; the term ‘respondent’ brings within its purview ‘a person’, which includes persons of all gender.
The court further observed that a person of any gender may feel sexually harassed; irrespective of the fact that the perpetrator of the act belongs to the same gender.
The opposite party raised the contention that:
- The POSH Act does not apply to the same gender complaints.
The court laid down the following points:
- Sexual Harassment has to pertain to the dignity of the person. This relates to his/her gender or sexuality. It does not mean that a person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act.
- Section 2(m) of the 2013 Act holds that the term ‘respondent’ brings within its purview ‘a person’; which includes persons of all gender.
- Section 2(n) of the 2013 Act, cannot be a static concept but has to be interpreted against the backdrop of the social perspective.
- Sexual Harassment has to pertain to the dignity of a person, which relates to his/her gender and sexuality.
- It does not mean that a person of the same gender cannot hurt modesty or dignity.
- A person may feel sexually harassed when modesty or dignity as a member of the said gender is offended by any of the acts; as held in S.2(n) irrespective of the sexuality and gender of the perpetrator of the act.
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