In the case of Jishu Sengupta & Others vs. The State of West Bengal & Anr., decided by the High Court of Calcutta on 4th November, 2016, the Court held that statements with sexual connotations and sexual innuendos are “sexually coloured remarks” and fall within the definition of sexual harassment under Section 354A of the Indian Penal Code (“IPC”). It observed that speaking in metaphors, means the use of words and phrases in an imaginative way to describe something else in order to show that the two things have the same qualities and to make the description more powerful.
This case was not filed in accordance with provisions of the Sexual Harassment of Women at workplace (Prevention, Prohibition and Redressal) Act, 2013. This complaint was filed with the Chief Judicial Magistrate under Sections 354A (1) (iv) (Sexual harassment) and 500 (defamation) of IPC read with Section 34 (common intention). The facts of the case are that Rituparna Chowdhury (“the Complainant”) works for gain at Eros International in Mumbai in the capacity of creative producer. Srijit Mukherjee (“Petitioner 1”) was the host of a talk show by name the name Shonge Srijit in the television channel Colour Bangla and he belongs to the group of common friends of the complainant. Rudranil Ghosh (“Petitioner 2”) and Parambrata Chattopadhyay (“Petitioner 3”) were invited as guests to the talk show in December, 2015. Petitioners 2 & 3 were also friends with the Complainant for over a decade. Jishu Sengupta (“Petitioner 4”) was the Producer and Director of the talk show and was responsible for its day-to-day affairs.
The Complainant, in her complaint before the Court of Chief Judicial Magistrate stated that on December 21, 2015 at 9:00 p.m. Petitioner 1, conversing with Petitioners 2 & 3, cast aspersion on the character and reputation of the Complainant. By referring to a mannequin as Rituparna Chowdhury, Petitioners 2 & 3 stated that they were in love with her for which she would be immortalised in history. They used metaphors and described how they enjoyed ‘playing cricket in the playground of Eden though the playground Eden did not allow them to play cricket at a time, while one played in the morning, another played in the evening.’ Again, with the use of metaphors, Petitioner 3 explained how he ‘entered the bus knowing that the bus is crowded with passengers and that there is no place to sit in that bus.’
The Complainant argued that the above comments were full of sexual innuendos and fell within the ambit of sexually coloured remarks under Section 354A of IPC. It was also argued that this intentional use of derogatory remarks had led to the fall of reputation of the Complainant, especially in the eyes of her friends and common people, as the Complainant too belonged to the same profession as Petitioners.
The Calcutta High Court was of the view that the legislature has categorically enumerated the acts constituting the offence of sexual harassment in Section 354A of IPC, though the legislature has left it to the discretion of the Court to decide whether the particular remarks directed to the victim will be construed as sexually coloured remarks. Hence, it said that in this case there was no scope to make two possible and reasonable constructions of any penal provision and the only thing that needs to be decided is whether the remarks made by the Petitioners can be construed as “sexually coloured remarks” for the purpose of bringing it within Section 354A (1) (iv) and in this regard the Court must examine the conversation made by the Petitioners in the television programme from the eyes of the victim i.e. complainant.
The Complainant had filed the complaint with the Chief Judicial Magistrate after a period of 2 months from the date of the incident. The Petitioners argued that the criminal proceedings should be quashed due to such delay. However, the High Court was of the view that even though the complaint was filed after 2 months of the date of the incident and that this delay had not been explained by the Complainant, there is still scope for the Complainant to do so during the trial of the case unless the complaint is barred by limitation. Since the complaint is not barred by limitation, the delay in filing the complaint cannot be a ground to quash the criminal proceeding.
There have been other cases in the past too, where courts have determined what may constitute a “sexually coloured remark”. In another Calcutta High Court case, Albert David Limited vs. Anuradha Chowdhary and Ors., (2004) 2 Cal LT 421 (HC), with respect to a cold environment being created due to an air conditioner, the comment “…come close to me, you will start feeling hot,” was held to be a sexually coloured remark.
– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner POSH at Work