New Delhi: The Kerala high court has ruled that gender discrimination against women at workplace will not constitute the offence of ‘sexual harassment’ under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), Bar and Bench reported.
The court observed that any form of sexual approach or behaviour that is unwelcome and having sexual undertone will come under the definition of ‘sexual harassment’ under POSH Act, the report said.
A division bench of Justices A.M. Shaffique and P. Gopinath emphasised that 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”.
These observations were made when the court was answering a reference from a single-judge bench that suggested that a prior high court judgment in the case of Anil Rajagopal versus State of Kerala and others needs reconsideration. According to the Bar & Bench report, the single-judge bench opined that discriminatory behaviour on the basis of sex would also have to be included within the definition of sexual harassment.
According to Live Law, it was contended that harassment can be meted out against an individual in different forms and only in instances where the harassment has an element of sexual advance in some form, it becomes sexual harassment. On the other hand, the respondent contended that any form of discrimination or behaviour which attracts harassment on the basis of difference in sex can also be characterised as sexual harassment.
The court explained that the act of harassment would have to relate to a sexual advance “either directly or by implication”, the Bar and Bench report said. “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.”
“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 said.
Therefore, the court agreed with the prior high court judgment in the Rajagopal case, and said there was 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 further explained.