Same-Gender Complaints Are Maintainable Under the POSH Act

Case: Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College & Others

Court: High Court of Calcutta 

Date of Judgement: 27 November 2020

Background

The Calcutta High Court considered whether a complaint of sexual harassment under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) could be entertained where the complainant and the alleged perpetrator were of the same gender.

The petitioner, Dr. Malabika Bhattacharjee, challenged the proceedings initiated by the Internal Complaints Committee (“ICC”) of Vivekananda College. She argued that the POSH Act could not apply to a complaint between persons of the same gender and that the allegations made against her did not fall within the definition of “sexual harassment” under Section 2(n) of the Act.

Facts

• The petitioner, Dr. Malabika Bhattacharjee, faced a complaint of sexual harassment before the Internal Complaints Committee (ICC) of Vivekananda College.

• The petitioner and the complainant were both of the same gender. The petitioner therefore argued that the POSH Act, 2013 could not apply to a complaint between persons of the same gender.

• The petitioner also argued that the allegations mainly concerned vilifying and defaming the complainant in public and did not amount to “sexual harassment” under Section 2(n) of the POSH Act.

• The complainant, however, argued that the POSH framework could cover same-gender complaints, particularly because the term “respondent” under Section 2(m) refers to “a person”.

• The authorities supported this position and argued that the complaint could be proceeded with under the POSH Act.

Issues

The main issues were:

• Whether a complaint of sexual harassment between persons of the same gender can be entertained under the POSH Act, 2013.

• Whether the allegations made in the complaint were capable of falling within the definition of “sexual harassment” under Section 2(n).

Judgement

1. Same-Gender Complaints are Maintainable under the POSH Act: The Court held that a complaint under the POSH Act is not automatically excluded merely because the complainant and respondent are of the same gender. Section 2(m) defines a “respondent” as “a person” and does not restrict the respondent to any particular gender.

2. Sexual Harassment Cannot be Determined Solely by Gender: The Court observed that sexual harassment must be understood in the context of dignity, gender and sexuality. Therefore, a person of the same gender can also engage in conduct that violates another person's dignity or modesty and may fall within Section 2(n) of the POSH Act.

3. Prohibited Conduct under Section 3 is Not Gender-Specific: The Court noted that the circumstances referred to in Section 3(2), including creating an intimidating, offensive or hostile work environment or subjecting a person to humiliating treatment, can occur between persons of any gender.

4. Complaint was Maintainable: On this basis, the Court held that the complaint was maintainable under the POSH Act. The complaint could not be rejected at the threshold merely because the petitioner and the complainant were of the same gender.

5. Merits of Allegations Not Decided: The Court clarified that it had not examined whether the allegations were actually proved. The competent authority was left free to consider the complaint and determine the allegations independently on their merits.

6. Opportunity for Cross-Examination: The Court also directed that the petitioner be given an opportunity to cross-examine the complainant, as the petitioner's right to cross-examination had been closed while the writ proceedings were pending.

Can a male file a complaint under the POSH Act?

Under the POSH Act, the statutory complaint mechanism is available only to an “aggrieved woman”. Therefore, a male employee cannot file a complaint under Section 9 of the POSH Act. However, this does not mean that the respondent must also be a woman. Section 2(m) defines a “respondent” as “a person”, making the respondent gender-neutral. In Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College & Others., the Calcutta High Court accordingly held that a complaint by a woman against another woman is maintainable.

POSH is gender-specific as to the complainant, but gender-neutral as to the respondent. Organisations can provide broader protection through internal policies without treating those mechanisms as statutory POSH proceedings.

Key Takeaways 

1. Same-gender complaints are maintainable: An ICC should not reject a complaint solely because the complainant and respondent are of the same gender.

2. Gender of the respondent is not determinative: Section 2(m) uses the term “a person” and does not restrict a respondent to a particular gender.

3. Assess conduct, not gender: The IC should examine whether the alleged conduct falls within Section 2(n) and/or the circumstances contemplated under Section 3(2), rather than assuming that sexual harassment can only occur between persons of different genders.

4. Hostile or humiliating conduct matters: Conduct creating an intimidating, offensive or hostile work environment, or subjecting a person to humiliating treatment, may be relevant even in a same-gender complaint.

5. Do not decide maintainability based on merits: The IC should distinguish between whether a complaint is maintainable and whether the allegations are proved. A complaint should not be dismissed at the threshold merely because of the gender of the parties.

6. Follow principles of natural justice: The Court also emphasised procedural fairness, including providing the respondent an appropriate opportunity to cross-examine the complainant where applicable.