POSH Updates – Same-gender Complaints Not Excluded in the POSH Act

The Prevention of Sexual Harassment Act 2013 has been exposed to several changes in the recent past to tailor the law to make it more inclusive. The PoSH Act, since its inception, has been a gender-specific law, and only women could benefit from the legal recourse provided by the Act. The Calcutta High Court pronounced a judgement in January, 2021. It was held that same-gender complaints are maintainable under the PoSH Act.

In the case of Dr Malabika Bhattacharjee Vs Internal Complaints Committee, Vivekananda College & Ors. The Court rightly pointed out that since Section 2 (m) of the Act refers to a respondent as ‘a person’, it must be inferred that the person can identify as any gender. In the same judgement, it was also held that no law in the PoSH Act must be set aside because it is a same-gender complaint.

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Brief Summary of the facts of the case :

A writ petition was filed in Court that challenged the decisions and actions of the Internal Complaints Committee of a particular institution to accept a complaint filed under the Act as without jurisdiction on the grounds that both the parties were the same gender. While on the one hand, the petitioner argued that the Act did not mention addressing same-gender complaints, the respondent’s side argued that the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Employees and Students in Higher Educational Institutions) Regulations, 2015 includes regulations that are wide enough to cover same-gender sexual harassment complaints.

What was held?

The Court held that there is nothing in Section 9 of the PoSH Act that excludes same-gender complaints. The High Court made a critical statement about how though a same-gender sexual harassment complaint may sound odd, it is not an impossible occurrence. Therefore, it must be given just as much importance as an opposite-gender complaint would receive. The Court pointed out important sections of the Act that explicitly mention that the perpetrator and victim can be of the same gender, for example- Section 3(2). Essentially, the Court held that ‘sexual harassment’ as inferred in the Act must “pertain to the dignity of the person” and therefore, it does not mean that the same-gender cannot bruise the dignity of the other person.

Written by: Tharika Sai

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