LI Network
Published on: November 09, 2023 at 10:30 IST
The Supreme Court of India has declined a plea requesting amendments to the Gender Sensitization and Sexual Harassment of Women (Prevention, Prohibition and Redressal) Regulations, 2013, to make them gender-neutral.
The proposed amendments aimed to extend the constitutional rights of LGBTQIA+ individuals, ensuring their inclusion within the scope of these regulations.
These regulations were established in response to the enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, and were notified by the Supreme Court in the same year.
Among the changes sought, the replacement of the term “aggrieved woman” with “aggrieved persons” was specifically requested.
However, the Bench consisting of Justices B.V. Nagarathna and Ujjal Bhuyan maintained that the purpose of these regulations is to protect “aggrieved women” in the workplace.
The Court stated, “We are of the view that it would be inappropriate to direct the aforesaid amendments to be made to the 2013 Regulations as otherwise the whole purpose and object of the said Regulations would be diluted and denuded of its effect.”
Senior Counsel Vibha Datta Makhija, representing herself, argued that the regulations were “wholly inadequate” in addressing the inclusion of LGBTQIA+ persons and thus requested amendments while underscoring the importance of making these regulations inclusive.
Apart from the main direction mentioned, several other changes were sought, including defining “sexual harassment” in gender-neutral terms, amending the regulations to permit individuals of all genders to avail remedies, and the establishment of a committee to assess the adequacy of the current functioning of the regulations in terms of sensitization activities and recommending necessary changes to increase their scope and effectiveness.
The Court’s rationale
The Court clarified that the existing regulations are designed to protect “aggrieved women” in the workplace, specifically at the Supreme Court of India. Furthermore, the regulations were enacted in accordance with Article 15(3) of the Constitution, which provides for special provisions for women.
The Court acknowledged that the definition of “aggrieved woman” does not encompass LGBTQIA+ individuals. If such individuals experience sexual harassment, the petitioner argued that there are no existing regulations to seek redress.
However, the Court emphasized that amending the current regulations is not the appropriate remedy. It underscored that amending the regulations would divert focus from the primary objective, which is the prevention of sexual harassment of women at the Supreme Court of India.
The Court relied on previous decisions, including State of Jammu & Kashmir vs. A.R. Zakki, 1992 Supp (1) SCC 548, and Union of India vs. K. Pushpavanam, 2023 SCC OnLine SC 987, to assert that a Constitutional Court would not issue a writ of mandamus to a legislature or a rule-making body to enact specific legislation.
In response to the Court’s stance, Makhija withdrew the application and stated her intention to “make a representation to the Gender Sensitization Committee of the Supreme Court for the formulation of another set of regulations to cover LGBTQIA+ communities, providing protection from sexual harassment in the workplace, specifically the Supreme Court of India.”
Consequently, the application was dismissed as withdrawn, highlighting the ongoing conversation surrounding gender sensitivity and LGBTQIA+ rights within India’s legal framework.