Kerala High Court held Law does not contemplate discrimination on basis of sex & deals with sexual harassment only

In the case of Dr. Prasad Pannian vs. The Central University of Kerala & Ors., in High Court of Kerala, dated 2nd December, 2020, the Court held that Law does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment in the workplace.

The question that arose for consideration in this case was whether a complaint filed by complainant can be the basis of inquiry under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (Law).

The petitioner contended that the allegations in the complaint did not disclose any form of sexual harassment and a mere difference in sex between two individuals cannot give rise to a sexual harassment even though there might be harassment.

The complainant argued that sexual harassment can take different forms. Definition of sexual harassment in the Law is not exhaustive. Therefore, any form of sexual intimidation or discrimination or behaviour which tends to attract harassment only on account of difference in sex can also be characterized as sexual harassment.

After hearing both sides, the Court said that:

  1. Section 2 (n) is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at sub-clauses (i) to (v). There might be other instances as well. Any such behaviour which is unwelcome could be either direct or indirect.
  2. Sub-clauses (i) to (v) are only instances of unwelcome acts or behaviour, but while interpreting a statute, we will have to derive the meaning of the word “sexual harassment” taking into account sub-clauses (i) to (v) as well. Sub-clauses (i) to (v) are all illustrations. 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.
  3. But when an allegation of sexual harassment is made, though not coming within the parameters as specified in sub-clauses (i) to (v), the act should have something to do with a sexual advance either directly or by implication.
  4. Section 3 creates an absolute prohibition to subject a women to sexual harassment at workplace. The purport of Section 3(2) is that, if any of the eventualities mentioned under clauses (i) to (v) or any other circumstances occur, it should be in relation to or connected with any act or behaviour of sexual harassment.
  5. In order to constitute sexual harassment, definitely there should be an attempt on the part of the wrongdoer to do some act which was unwelcome or by way of behaviour, either directly or by implication makes the victim to feel that it amounts to sexual harassment.

The Law does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment in the workplace.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Child Safety at Work & Adv. Vatsal Chorera – Legal & Compliance

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