Discrimination on the Basis of Sex is not Sexual Harassment: Kerala High Court

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Written by: Ms Devshree Dangi

Kerala High Court Interpreted the definition of Sexual Harassment at workplace said that discrimination on the basis of sex does not constitute an offence of Sexual Harassment.

The Indian Constitution provides the Right to equality to all the citizens of India. So the discrimination on the base of sex cannot be tolerated. The sexual harassment of women at workplace (Prevention Prohibition and Redressal) Act 2013 deals with the cases of sexual harassment of women at workplace. This act came into existence with an aim to provide safeguards to a woman.

But does the discrimination on the basis of sex also fall under the category of sexual harassment under the POSH Act?

A recent order of Kerala High Court clears all the doubts.

The Kerala High Court ordered in the case of Dr Prasad Pannian vs. Central University of Kerala that mere discrimination on the basis of gender cannot be constituted as the offence of sexual harassment under Sexual Harassment of women at workplace (prevention, prohibition and Redressal) Act, 2013.

Kerala High Court in a division bench of Justices AM Shafique and P Gopinath said that “Any form of sexual act or behaviour that is unwelcome” comes under the definition of sexual harassment under POSH Act. It further stated that if should be express or implied, sexual advance or sexual undertone for the provisions of POSH Act.

“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,” the Court said.

Kerala High Court said the earlier judgment passed by the single-judge bench in the case of  Anil Rajagopal v. State of Kerala and Others, required reconsideration because of the manner it characterized sexual harassment in Sections 2(n) and 3(2) of POSH Act, 2013.

The prior judgement opined that discrimination on the basis of sex would also have to be included within the definition of sexual harassment.

Kerala High Court later said in its order ruled  that  “The POSH Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment at the workplace.”

Priory, the single judge held that list of acts of sexual harassment are not exhaustive in the provisions of POSH Act and other acts such as discrimination could also be included in it.

In this case, the petitioner said that only in a case where it had an element of sexual advance could be construed as sexual harassment. A fact that the accused and the harassed person from the opposite sex could not result in sexual harassment.

It also urged that the provision related to sexual harassment under the POSH act should be interpreted narrowly and construed strictly. Because the allegation of sexual harassment on someone can cause harm to the integrity and dignity of a person to whom the allegations were made.

So the act of discrimination does not fall within the ambit of the definition of sexual harassment under the POSH act.

Now the respondent University on the other side has emphasized any act of sexual intermediation or discrimination or behaviour that attracted harassment on the basis of sex could also be constituted as sexual harassment.

Though, the single -judge bench was correct in his opinion observing that discriminatory behaviour on the basis of sex could be included within the definition of sexual harassment. But an act of discrimination on the basis of sex cannot be said sexual harassment.

Kerala High Court in its division bench agreed with the definition of sexual harassment was inclusive, not exhaustive. It stated that the acts specified in the POSH Act are only illustrative, because of the words ‘ including’ and ‘among other circumstances’ had been used in sections 2(n) and 3 of the Act.

“Apparently it is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at sub-clauses (i) to (v). There might be other instances as well. Any such behaviour which is unwelcome could be either direct or indirect”, the court ruled.

The court clarified that the act of harassment should have to relate to a sexual advance either directly or by implication.

“It is possible 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,” the Court stated.

Kerala High Court further said, “Any behaviour direct or indirect which is unwelcome and with sexual undertone could amount to sexual harassment under POSH Act.”

Apparently, 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,” the Court cleared.

Kerala High Court agreed with the prior judgement view in Rajagopal case and observed that there is no need to reconsider the said decision.

“We would only clarify that any form of sexual approach or behaviour that is unwelcome will come under the definition of ‘sexual harassment’ and it is not confined to any of the sub-clauses mentioned in Section 2(n), which of course will depend upon the materials placed on record and on a case to case basis. But it is made clear that in order to take action under the 2013 Act, the acts complained of should come within the purview of S.2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour on the part of the respondent”, the Bench explained.

The constitution of India gives every person a right to live a dignified life. The courts are duty-bound to protect the rights of the citizens of India and therefore it cannot pass an order that will cause harm to the dignity and integrity of a person.

The Kerala High Court observed that the definition of sexual harassment under the POSH act it is well defined and it is inclusive and not exhaustive but the Courts cannot interpret it in a wrong manner. And thus, the Court ordered that discrimination on the basis of sex cannot be constituted as the offence of sexual harassment under the POSH Act.


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