A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity is offended by such acts, irrespective of the sexuality and gender of the offender of such acts. In the initial wake of things, it might seem uncharacteristic that the person of the same gender can commit such offensive acts. However, given the shift in the cultural and social shifts, coupled with the influence of the entertainment industry, it is not unlikely for such instances to occur.
Section 3(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the Act) enlists the circumstances which, if occur or is present in relation to or connected with any act of sexual harassment, may amount to sexual harassment. Section 9 of the Act stipulates the manner in which a complaint of sexual harassment can be made by an aggrieved woman. An important question which arose for determination before Hon’ble the High Court of Calcutta in the case of Dr. Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College and others decided on 27th November 2020, was whether complaints of sexual harassment by the same gender inter-se are contemplated under the scheme of the Act. Interpreting the above provisions of the Act, the Hon’ble Court observed that ‘A cursory glance at Section 2(m) of the 2013 Act shows that the term ‘respondent’ brings within its fold ‘a person’, thereby including persons of all genders. There is nothing in Section 9 of the 2013 Act to preclude a same-gender complaint under the Act. If Section 3(2) is looked into, it is seen that the acts contemplated, therein, can be perpetrated by the members of any gender, even inter-se.’
Emphasizing the social backdrop in which the law relating to sexual harassment has to evolve and harmonise, the Hon’ble Court further observed ‘.. the definition of ‘sexual harassment’ in Section 2(n) cannot be a static concept but has to be interpreted against the backdrop of the social perspective. Sexual harassment, as contemplated in the 2013 Act, has to pertain to the dignity of a person, which relates to her/his gender and sexuality; which does not mean that any person of the same gender cannot hurt the modesty or dignity as envisaged by the 2013 Act.’ In view of the above, the compliant by the respondent of the same gender was held to be maintainable. The case highlights the recognition of the need to view Sexual Harassment at workplace in the context of evolving social dynamics. In the above context, employers would be required to realign the policy relating to sexual harassment, as also sensitise the employee workforce of the evolving interpretation.