In a significant order, the Supreme Court of India in the case of “Binu Tamta & Anr. Versus High Court Of Delhi & Ors.” on November 07,2023 refused the request made to direct that “sexual harassment” be defined in gender-neutral terms to bring within its purview acts of sexual harassment committed by respondents of the same sex as the “aggrieved person”. The Court also refused to direct that references to “aggrieved woman” be supplanted with “aggrieved persons” to reflect the gender-neutral protection of the Regulations (as defined below).

In the case, the Petitioner, an advocate had raised concerns related to the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (‘Regulations‘), which had been framed under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (‘POSH Act’) and implemented by the Supreme Court of India to address gender sensitization and sexual harassment within the workplace, particularly within the Supreme Court. It was contended that subsequent development of law and recognition of the constitutional rights of other persons such as LGBTQIA+ persons, the Regulations are wholly inadequate to cover such persons and directions be passed to make the Regulations gender neutral and include LGBTIA+ persons in the definition of Aggrieved Woman.

The Supreme Court observed that the directions sought from it would dilute the whole purpose of the Regulations because Regulations, as currently framed, were primarily intended to protect ‘aggrieved women’ within the work place, and were framed with regard to Article 15(3) of the Constitution of India and in order to extend the constitutional right of equality and equal protection of the laws to women. It was evident that the definition of ‘aggrieved woman’ did not encompass LGBTQIA+ individuals. The Court held that the object and purpose of the Regulations are in order to protect an ‘aggrieved women’ in the workplace i.e. the Supreme Court of India. If a person other than an ‘aggrieved woman’ is subjected to sexual harassment and there is no body of regulations to extend protection to such a person and a question arises regarding the manner in which such a protection could be extended, the answer does not lie by amending the existing regulations.

The Petitioner decided to withdraw the application and expressed her intent to make a representation to the Gender Sensitization Committee of the Supreme Court. The Court thereafter dismissed the application.

Anhad Law’s Perspective

The aforesaid order, though legally correct may be considered as retrograde in nature as the Hon’ble Court

despite having opportunity to remedy a law seems to have failed to respond to the needs of changing society and perform Ex debito justitiae. On the contrary, the Hon’ble Court has opted to follow the rigid procedures of law by observing that a writ of mandamus cannot be issued to the legislature to enact a particular legislation or with regard to executive when it exercises the power to make rules, which are in the nature of subordinate legislation.

It is obvious that the POSH Act is an Act to provide protection against sexual harassment of women at workplace which is even apparent from the definition of “aggrieved woman” under POSH Act. However, there are certain clauses of the POSH Act that are gender neutral. For example, Respondent is defined to mean a person against whom the aggrieved woman has made a complaint, and such respondent can be of any gender. Similarly, Section 18 of the POSH Act provides for filing of appeal against decisions made by the IC or LC and utilizes the expression “any person” eligible to file an appeal. The same implies that the aggrieved party in question can be a man, woman, or an individual identifying with any other gender identity.

While passing the aforesaid order, the Hon’ble Supreme Court seemed to ignore that in 2014, the Supreme Court of India, in the landmark case of National Legal Services Authority (NALSA) vs. Union of India (2014) 5 SCC 438, recognized transgender people as the third gender and affirmed their constitutional rights. It was expected that this recognition has broader implications for various laws, including those related to workplace harassment. However, despite there being no specific judicial pronouncements on this position, the aforesaid order by Supreme Court of India had impaired the cause.

At this stage the words of Justice Bhagwati in the case of National Textile Workers’ Union v. P.R. Ramakrishnan, (1983) 1 SCC 228, at page 256, need to be set out. They are:

“We cannot allow the dead hand of the past to stifle the growth of the living present. Law cannot stand still; it must change with the changing social concepts and values. If the bark that protects the tree fails to grow and expand along with the tree, it will either choke the tree or if it is a living tree, it will shed that bark and grow a new living bark for itself. Similarly, if the law fails to respond to the needs of changing society, then either it will stifle the growth of the society and choke its progress or if the society is vigorous enough, it will cast away the law which stands in the way of its growth. Law must therefore constantly be on the move adapting itself to the fast changing society and not lag behind.”

The Supreme Court of India itself has approved the principle of updating construction, as enunciated by Francis Bennion, in a number of decisions including the case of State versus S. J. Chowdhury [(1996) 2 SCC 428]. In this case it was held that the Evidence Act was an ongoing Act and the word “handwriting” in Section 45 of that Act was construed to include “typewriting”. These principles were also applied in the case of SIL Import USA versus Exim Aides Silk Exporters [(1999) 4 SCC 567]. In this case the words “notice in writing”, in Section 138 of the Negotiable Instruments Act, were construed to include a notice by fax. On the same principle Courts have interpreted, over a period of time, various terms and phrases. To take only a few examples:- “stage carriage” has been interpreted to include “electric tramcar”; “steam tricycle” to include “locomotive”; “telegraph” to include “telephone”; “bankers books” to include “microfilm”; “to take note” to include “use of tape recorder”; “documents” to include “computer database’s”.

Francis Bennion in Statutory Interpretation had stressed the need to interpret a statute by giving allowances for any relevant changes that have occurred, since the statutes passing, in law, social conditions, technology, the meaning of words, and other matters.

It is apparent that for the need to update legislations, the Courts have the duty to use interpretative process to the fullest extent permissible by the enactment taking into consideration the need of the times and constitutional principles. It is presumed that Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes. While it remains law, it is to be treated as always speaking. This means that in its application on any date, the language of a statute, though necessarily embedded in its own time, is nevertheless to be construed in accordance with the need to treat it as current law.

Considering the fact that the purpose of beneficial statutes like POSH Act is to promote the general welfare of bringing social reforms through the system, such statutes are not meant to be interpreted through strict means and should be interpreted liberally. Taking a cue from international statutes such as the United Kingdom’s Equality Act, 2010 and the United States’ Title VII of the Civil Rights Act,1964 which provide for comprehensive frameworks addressing sexual harassment with more gender-inclusive language, it is expected that in near future the situation may be remedied and the POSH law will be made gender neutral as well as applicable to

LGBTIA+ community to cater to a large segment of society.

As most organisations adopt the principles of diversity & inclusion, it is possible that several organisations in India start implementing a legally abiding gender-neutral POSH policy which would promote an inclusive

workplace culture that values diversity and mutual respect, recognizing individuals for their abilities rather than their gender.