In a landmark decision, the High Court of Calcutta ruled that same-gender allegations could be upheld under the Sexual Abuse of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, commonly referred to as the POSH Act.
This judgment was handed down by the High Court of Calcutta in the case of Dr. Malabika Bhattacharjee vs. Internal Complaints Committee, Vivekananda College by a sole tribunal of Hon’ble Justice Sabyasachi Bhattacharyya.
In the above-mentioned case, a petition was lodged opposing the decision of the institution’s Internal Complaints Committee to entertain a lawsuit under the Act without jurisdiction on the basis that both the plaintiff and the respondent were of the same gender.
On the petitioner’s side, it was claimed that the POSH Act was not meant to resolve same-gender grievances and, on the other hand, the respondent’s counsel argued that such complaints were addressed by the University Grants Commission (Prevention, Prohibition and Redressal of Sexual Harassment of Women Workers and Students in the Higher Educational Institution) so that they could be sustained under POSH Act as well.
In trying to find a solution to all the claims, HC argued that “there is nothing in Section 9 of the 2013 Act to prevent a same-gender complaint under the Act.”
HC acknowledged that the definition of sexual assault is not rigid and could be perceived differently against the background of social perspective.
Justice Bhattacharyya, held that: “A person of any gender may feel threatened and sexually harassed when her/his modesty or dignity as a member of the said gender is offended by [acts of sexual harassment] irrespective of the sexuality and gender of the perpetrator of the act.”
POSH has indeed been debated for not being gender-neutral in the past and for preventing the probability of queer people being sexually assaulted at workplaces. Owing to the gender-specific aspect of the law, men are not allowed to file a lawsuit under it at all—forcing them to rely exclusively on organizational practices, which may or may not prevent discrimination of any sort, for justice.
It seems, though, that the Indian justice system is starting to shift a bit from the hetero-normative narrative.
“Although it might seem a bit odd at the first blush that people of the same gender complain of sexual harassment against each other, it is not improbable, particularly in the context of the dynamic mode which the Indian society is adopting currently, even debating the issue as to whether same-gender marriages may be legalized”, the High Court said.
Sexual crime laws are rooted in the male-female binary. Activists argue that the best way for the legislation to be respectful of all identities is to ensure that the language in which the laws are written is gender-neutral.
Yet when it comes to violence-related rules, the problem gets even more complicated. The prevailing hierarchical structure of society, and how women are always at the end of a lot of sexual harassment, means that activists are wary of fighting for gender neutralization of the laws.
While much cannot be said in favor of how supportive the authorities have been and can be when it comes to a person belonging to the LGBTQ community facing a threat, such a person may now assert protection and does not have to recoil at the thought of a cop stating the case as invalid or unlawful.
There are undoubtedly, probabilities of false allegations, such as those of opposite sexes and, to add to that, deep-seated homophobia among the masses. It is still a much-needed shift from the heteronormative and purely hetero-accepting (so to speak) constructs.
This decision by the Calcutta HC can also go a long way towards broadening the reach of the POSH Act, which has been criticized for disappointing a large per cent of India’s working women in the past.
Although we might indeed be a long way from gender-neutral policies on sexual harassment and assault, the State High Court’s opinion that “acts [of sexual harassment] can be perpetrated by the members of any gender, even inter se (between or among themselves)” is a sign of progress.