Shweta Tambade
The Kerala High Court stated that any form of unwelcoming sexual approach or behaviour would be termed as ‘sexual harassment’ under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013.
The bench comprising Justices AM Shaffique and P. Gopinath observed while upholding a single bench judgment in Anil Rajagopal v. State of Kerala and Others.
The bench said that the very concept of sexual harassment in a workplace against a woman starts from behavior expressing unwelcoming having sexual tone – only then is provisions of Act 2013 applicable.
The petitioner argued that harassment can be done against an individual in different forms, and only in situations where the harassment has any element of sexual advance in some form, it becomes sexual harassment.
It further said that even though there might be harassment, a mere difference in sex between two individuals cannot give rise to sexual harassment.
While the respondent contended that any form of sexual intimidation or discrimination, or behavior which tends to attract harassment only on account of sex difference can also be determined as sexual harassment.
The bench observed while referring to Section 2(n) of the Act noted:
“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.”
“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.”
The court observed that the 2013 Act does not consider a situation of discrimination based on sex, whereas it specifically deals with sexual harassment in the workplace.
Answering the reference, the bench observed:
“Therefore, 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 behaviour which has a sexual tone behind it without which provisions of Act 2013 will not apply.”