Mere discrimination against women at workplace based on gender will not constitute the offence of 'sexual harassment' under Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), the High Court ruled.

The High Court emphasized that any form of sexual approach or behaviour that is unwelcome and having sexual undertone will come under the definition of 'sexual harassment' under POSH Act.

But there should be an express or implied sexual advance or sexual undertone for the provisions of the POSH Act to apply, the court added.

"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,” the Court ruled.

The Court was hearing a reference from a single-judge Bench which had opined that a prior judgment of the Kerala High Court (Anil Rajagopal v. State of Kerala and Others) required reconsideration because of the manner in which it characterised sexual harassment in Sections 2(n) and 3(2) of the Act, 2013.

Both these provisions list behaviour that could amount to sexual harassment.

The single-judge opined that discriminatory behaviour on the basis of sex would also have to be included within the definition of sexual harassment.

"The POSH Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment at workplace."

The single-judge had opined that the list of instances of sexual harassment in the provisions was not exhaustive, and it could include other acts as well such as discrimination.

The petitioners in the case at hand contended that only harassment that had an element of a sexual advance could be construed as sexual harassment. The mere fact that the accused and the harassed are from opposite sex would not result in sexual harassment, it was averred.

The counsel also urged that sexual harassment under the POSH would have to be interpreted narrowly and construed strictly since any allegation of sexual harassment could harm the integrity and reputation of the person against whom the allegations were made.

Therefore, plainly discriminatory behaviour could not be included within the purview of sexual harassment.

The respondent university emphasized that any form of sexual intimidation or discrimination or behaviour which attracted harassment only on account of difference in sex could be also be characterized as sexual harassment.

It was, therefore, the respondent's case that the single-judge's opinion wherein he observed that discriminatory behaviour on the basis of sex could be included within sexual harassment, was correct.

The Division Bench agreed with the single-judge's finding that the definition of sexual harassment was inclusive and not exhaustive. It ruled that the acts specified in the POSH Act were only illustrative, particularly because the words 'including' and 'among other circumstances' had been used in Sections 2(n) and 3 of the Act.

"Apparently it is an inclusive definition and only a few unwelcoming acts or behaviour had been mentioned at subclauses (i) to (v). There might be other instances as well. Any such behaviour which is unwelcome could be either direct or indirect," the Court concluded.

The Court went on to clarify that the act of harassment would have to relate to 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 explained

Any behaviour direct or indirect which is unwelcome and with sexual undertone could amount to sexual harassment under POSH Act.

However, mere discrimination on the basis of sex was not envisaged by the POSH legislation, the Court held, disagreeing with the single-judge to this extent.

"Apparently, the 2013 Act does not contemplate a situation of discrimination on the basis of sex whereas it specifically deals with sexual harassment in the workplace," the Court made it clear.

Interpreting Section 3 of the POSH, the Court stated that the provision of law created an absolute prohibition on sexual harassment at the workplace.

Agreeing with the view adopted by the High Court in Rajagopal, the Court observed that there was no need to reconsider the said decision.

"We would only clarify that any form of sexual approach or behaviour that is unwelcome will come under the definition of 'sexual harassment' and it is not confined to any of the sub clauses mentioned in Section 2(n), which of course will depend upon the materials placed on record and on a case to case basis. But it is made clear that in order to take action under the 2013 Act, the acts complained of should come within the purview of S.2(n) and Section 3 of the Act or any other form of sexual treatment or sexual behaviour on the part of the respondent", the Bench further explained.