Chambers of Ishaan Garg
Ch. No. 217, Western Wing, District & Sessions Court, Tis Hazari, New Delhi, Delhi 110054
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The Court also cautioned that if the provisions of the POSH Act are misused, it could create more glass ceilings for women.
Calcutta High Court
The Calcutta High Court recently observed that the use of 'Sweety' and 'Baby' to address women is prevalent in certain social circles and the use of these words do not always have a sexual colour
In the same judgment, the Court also sounded a note of warning that if the provisions of the Prevention of Sexual Harassment of Woman at Workplace (Prevention, Prohibition and Redressal) Act (POSH Act) are misused, it could create more glass ceilings for women.
Justice Sabyasachi Bhattacharyya made these observations while dealing with a case involving allegations of sexual harassment.
A female employee of the Coast Guard had alleged that her senior had sexually harassed her in several ways, including by using the words 'Sweety' and 'Baby' to address her.
The complainant contended that there were sexual undertones in the senior officer's utterances.
The senior officer, however, maintained that he never used these terms in a sexually coloured manner. He added that he stopped using such words once the complainant expressed her discomfort.
The High Court acknowledged that the use of such terms was held to be inappropriate by an Internal Complaints Committee (ICC), but added that they need not always be sexually coloured.
"The use of the expressions 'baby and sweety' has been held by the Internal Complaints Committee (ICC) itself to be inappropriate. However, it is to be noted that once the petitioner informed the respondent no.7 (alleged offender) about her discomfort in that regard by WhatsApp and otherwise, he never repeated the terms of endearment to address the petitioner. Such expressions may be prevalent in certain social circles and need not always be sexually coloured," the Court said in the April 24 judgment.
The judge noted that Section 2(n) of the POSH Act defines 'Sexual Harassment' and any sexually coloured remarks and unwelcome verbal conduct of a sexual nature.
"However, per se, the use of the above two expressions ('Sweety', 'Baby') need not be construed necessarily to be sexually coloured," the Court added.
The Court also considered the fact that the accused officer stopped using these words after he was confronted by the complainant. Therefore, the element of "unwelcome" conduct was thereby taken away, the Court opined.
"Moreover, the verbal use of the words having been once expressed by the petitioner to be unwelcome to her, the respondent never repeated the same, thus taking way the element of 'unwelcome' from such verbal use of the words. Thus, although inappropriate, the respondent never repeated the words, which itself shows that those could not have been intended to deliberately irritate the petitioner or to sexually harass the petitioner," the Court said.
By way of background, the complainant had accused her senior officer of sexually harassing her in various ways, including by staring at her inappropriately and peeping into her room.
The Court, however, noted that there were no witnesses to support these allegations. Since the complaint was lodged after some delay, the ICC could not find any CCTV footage to lend credence to the allegations either, the Court added.
"Staring has various shades and does not always necessarily lead to sexual harassment as contemplated in the 2013 Act," the judge further observed.
The Court was also not convinced by the allegation that the senior officer had used the phrase 'hugging the coast' in a sexual manner while speaking to the complainant. The single-judge noted that it is a form of usual terminology used in the coast guard circles.
"Such terminology being usual in Coast Guard circles and having been used by the petitioner first, a repeat of the same, even if any, without sexual overtones, as corroborated by witnesses, defeats the allegation itself," the Court said.
The timing of the complaint also led the Court to express reservations about the genuineness of the allegations.
"The conduct and chronology of events speaks volumes against the petitioner. There were several prior charges against the petitioner by her colleagues across the board. Thus, the possibility of the petitioner using the allegation of sexual harassment as a ruse and afterthought to save her skin from such allegations cannot be ruled out," the Court observed.
The Court eventually dismissed the writ petition filed by the complainant and confirmed the ICC's decision to absolve the accused senior officer of any wrongdoing.
Misuse of POSH Act could create more glass ceilings
Notably, the Court also voiced concern that the misuse of the POSH Act could end up working against women instead of protecting them.
"Since the Statute itself provides sufficient protection (quite rightly so, in view of the harassments often faced by women at their workplaces), a double layer of protection, if extended by adjudicating forums to the complainant, might be counterproductive, since excessive abuse of the provisions of the statute will create more glass ceilings than they remove, creating fetters in the employment of genuinely competent and hard-working female persons," the judge cautioned.
While the complainant's writ petition in this case was dismissed, the Court clarified that it has not commented on the merits of the criminal case filed and pending against the accused senior officer.
XXX v. Gender Sensitization and Internal Complaint Committee & Ors. (2024 Calcutta HC)
