Mere discrimination against women at the workplace based on gender will not constitute the offence of 'sexual harassment' under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), the Kerala High Court ruled (Dr.Prasad Pannian v. Central University of Kerala).
The High Court emphasized that any form of sexual approach or behavior that is unwelcome and having a sexual undertone will come under the definition of 'sexual harassment' under the POSH Act. But there should be an express or implied sexual advance or sexual undertone for the provisions of the POSH Act to apply, a Division Bench of Justices AM Shafique and P Gopinath Go added."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 behavior which has a sexual tone behind it without which provisions of Act 2013 will not apply,” the Court ruled. The Court was hearing a reference from a single-judge Bench which had opined that a prior judgment of the Kerala High Court required reconsideration because of the manner in which it characterised sexual harassment in Sections 2(n) and 3(2) of the Act, 2013.
Both these provisions list behavior that could amount to sexual harassment. The single-judge opined that discriminatory behaviour on the basis of sex would also have to be included within the definition of sexual harassment. The POSH Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment at workplace. The single-judge had opined that the list of instances of sexual harassment in the provisions was not exhaustive, and it could include other acts as well such as discrimination.
The petitioners in the case at hand contended that only harassment that had an element of a sexual advance could be construed as sexual harassment. The mere fact that the accused and the harassed are of the opposite sex would not result in sexual harassment, it was averred. The counsel also urged that sexual harassment under the POSH would have to be interpreted narrowly and construed strictly since any allegation of sexual harassment could harm the integrity and reputation of the person against whom the allegations were made. Therefore, plainly discriminatory behaviour could not be included within the purview of sexual harassment. The respondent university emphasized that any form of sexual intimidation or discrimination or behaviour which attracted harassment only on account of difference in sex could be also be characterized as sexual harassment. It was, therefore, the respondent's case that the single-judge's opinion wherein he observed that discriminatory behaviour on the basis of sex could be included within sexual harassment, was correct.
The Division Bench agreed with the single-judge's finding that the definition of sexual harassment was inclusive and not exhaustive. It ruled that the acts specified in the POSH Act were only illustrative, particularly because the words 'including' and ‘among other circumstances’ had been used in Sections 2(n) and 3 of the Ac Apparently it is an inclusive definition and only a few unwelcoming acts or behavior had been mentioned at subclauses (i) to (v). There might be other instances as well. Any such behavior which is unwelcome could be either direct or indirect, the Court concluded. The Court went on to clarify that the act of harassment would have to relate to a sexual advance either directly or by implication. “It is possible that there might be other unwelcome acts or behavior 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,” the Court explained
