The Kerala High Court recently ruled that mere discrimination against women at the workplace based on gender will not constitute 'sexual harassment' under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 or POSH Act. There should be “express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it” to amount to sexual harassment under the Act. The Division Bench of Justices AM Shaffique and P Gopinath also observed that any form of sexual approach or unwelcome behaviour can amount to sexual harassment under the POSH Act.
The Division Bench was deciding a reference from a Single Bench on the scope of sexual harassment when it made the ruling. The court was hearing a reference from a single-judge bench pertaining to the ‘Dr Prasad Pannian versus Central University of Kerala’ case. The complaint pertaining to the case was filed by a female research scholar in the Department of English and Comparative Literature against Dr Prasad Pannian, Associate Professor of the same department at the University.
The petitioner, who is the faculty against whom the complaint was filed, had challenged the complaint of the research scholar stating that it does not come under the purview of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, as she had not disclosed any form of sexual harassment as per what is defined in the Act. He contended that mere difference in sex does not amount to sexual harassment, even though there might be harassment in some form. He argued that harassment can be meted out against an individual in any form, and that it amounts to sexual harassment, only if there is a sexual advance in some form.
Countering this, the respondent argued that “any form of sexual intimidation, discrimination or behaviour, which tends to attract harassment only on account of the difference of sex, could be characterised as sexual harassment.”
Considering this, the single-judge Bench of the HC held the opinion that an earlier judgment of the Kerala High Court — Anil Rajagopal versus State of Kerala and Others — required reconsideration to understand what characterised sexual harassment under Sections 2(n) and 3(2) of the Act, 2013. Both sections define acts or behaviour that could amount to sexual harassment.
Section 2(n) of POSH Act defines “sexual harassment” as any one or more of the following unwelcome acts or behaviour, namely, physical contact and advances; a demand or request for sexual favours; making sexually coloured remarks; showing pornography; any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
According to Section 3(2) of POSH Act, five sub-clauses — implied or explicit promise of preferential treatment; the threat of detrimental treatment; threat about her present or future employment status; interference with her work or creating an intimidating or offensive or hostile work environment for her; or humiliating treatment likely to affect her health or safety — amount to sexual harassment.
The single-judge held the opinion that any discriminatory behaviour on the basis of sex would have to be included within the purview of sexual harassment. Disagreeing, the Division Bench said that mere discrimination on the basis of sex is not envisaged under the POSH Act.
However, both, the Division Bench and the Single Bench, agreed that the definition of sexual harassment was not exhaustive but was inclusive. While an exhaustive statutory definition refers to detailed list enumerating all possible elements that define a term, inclusive list details a few elements but not limited in scope.
Considering phrases such as “included”, “among other circumstances’ and "unless the context otherwise requires" have been used in sections 2(n) and 3 of POSH Act, the Division Bench ruled that the acts listed in the POSH Act were “only illustrations”.
“Apparently, it is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at subclauses (i) to (v) [of section 3]. There might be other instances as well. Any such behaviour, which is unwelcome, could be either direct or indirect,” the court ruled.
It also said that the POSH Act is to ensure an equitous, safe, secure and enabling environment for women to work with dignity, free from all sorts of sexual harassment and thereby to encourage women's participation in work. However, it stressed that the act of harassment should have something to do with a sexual advance either directly or by implication.