On 27.11.2020, The High Court of Calcutta hearing a Constitutional Writ Jurisdiction in the case of Dr. Malabika Bhattacharjee v. Internal Complaints Committee Vivekananda College & Ors. comprising of Justice Sabyasachi Bhattacharyya, J. held that the same-gender Sexual Harassment complaints are maintainable under the POSH Act.
Issue before the Court
The question of gender equality acquires primacy in deciding whether a complaint falls within the periphery of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013. In the present case, since the gender of the complainant and the respondent is the same, the question of the Act being invoked.
Petitioner Contentions
Petitioner submits before the Court that the act as alleged, could not fall within the purview of “sexual harassment” as contemplated in the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
Further, the petitioner places particular reliance on the definition of “sexual harassment” in Section 2(n) of the said Act and seeks to impress upon the Court that the acts contemplated therein have no nexus with the present complaint.
Respondent Contentions
Respondent submits before the Court, “that on the basis of the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 and submits that the said Regulations are broad enough to encompass respondents of all genders, implicitly meaning that the gender of the complainant and the respondents can very well be the same in order to attract the rigors of the Regulations, which govern the present parties as well.”
“By placing particular reliance on Regulation 8(2), learned counsel for the private respondent argues that the expression “the respondents shall file his/her reply” has been used therein, thereby bringing within its purview respondents of both genders.”
“to be read with the definition of “respondent” in Section 2(m) of the 2013 Act, which contemplates “a person” as a respondent, indicates clearly, according to the private respondent, that same-gender allegations can also be entertained under the 2013 Act.”
Court Findings
The Court dismissed the writ petition and further observed that the definition of "sexual harassment"in Section 2(n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective.
The Court further said: "If Section 3(2) is looked into, it is seen that the acts contemplated therein can be perpetrated by the members of any gender interse.
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