Denial of gender neutral Sexual Harassment Policy: Supreme court

denial of gender neutral sexual harassment policy supreme court

Binu Tamta & Anr. Vs. High Court Of Delhi & Ors.

The Supreme Court of India through an order passed in the case of ‘Binu Tamta & Anr. Vs. High Court of Delhi & Ors, W.P.(C) No. 162/201’, rejected the petition to make the sexual harassment policy gender-agnostic. The plea sought to supplant references to “aggrieved woman” with “aggrieved persons” under the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition, and Redressal) Regulations, 2013.

The Hon’ble Supreme Court of India through an order passed on November 7, 2023 disposed of a petition filed to amend the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations of 2013 (“Regulations”) to sensitize the definition of sexual harassment by including gender-neutral terms.

The purpose of the proposed amendments under the petition was to protect the constitutional rights of individuals, including the LGBTQIA+ community, allowing them to file as “aggrieved persons” for cases of sexual harassment at the Supreme Court.

Facts

The contention of the petitioner was that the Regulations notified by the Hon’ble Supreme Court on August 6, 2013 were only extended to the “aggrieved woman”, as defined under Section 2(a) of the Regulations, reproduced below:

“Aggrieved woman” means, in relation to the Supreme Court, any female, of any age, whether employed or not, who claims to have been subjected to any act of sexual harassment by any person in the Supreme Court precincts, but does not include any female who is already governed by the Supreme Court service regulations.

Considering the development of law and recognition of constitutional rights, particularly regarding individuals within the LGBTQIA+ community, the petitioner contended that the abovesaid regulations lacked the adequate redressal mechanisms to address the concerns of LGBTQIA+ community related to workplace sexual harassment at the Hon’ble Supreme Court as they do not form part of the aggrieved woman as defined under the Regulations. Consequently, the petitioner sought amendments in line with Article 14 of the Constitution of India, emphasizing the constitutional right of LGBTQIA+ to equality and equal protection under the law.

Key Issue

Whether the Regulations need to be amended to adequately protect individuals belonging to the LGBTQIA+ community from sexual harassment in the workplace at the Hon’ble Supreme Court of India?

Findings

The Hon’ble Supreme Court was of the view that in cases where there is no regulatory framework to offer protection to a person who falls outside the ambit of “aggrieved woman” particularly LGBTQIA+ community, directing amendments to the Regulations will not be appropriate as it could divert focus from the primary objective i.e., preventing sexual harassment of women at the Supreme Court. Further, the Hon’ble Supreme Court citing precedent to the 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 case, emphasized that a constitutional court by the way of a writ of mandamus, cannot direct the legislature or a rule-making body to enact a law on a particular subject and in a particular manner.

The Hon’ble Supreme Court also noted its limitations, stating it couldn’t direct the Government to consider introducing a specific bill before the legislature within a set timeframe. However, the Hon’ble Supreme Court suggested the petitioner to make a representation to the Gender Sensitization Committee of the Supreme Court for formulation of another body of regulations to protect individuals belonging to the LGBTQIA+ communities from workplace sexual harassment at the Hon’ble Supreme Court. Consequently, the petition as well as the application for clarification/direction was dismissed by the Hon’ble Supreme Court.

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