Pedantic Approach by Kerala High Court Holding that Gender Discrimination is Not Sexual Harassment

The spirit of India's sexual harassment law seeks to deal with gender discrimination, and multiple Supreme Court judgments have held this. SURUCHI KUMAR, Head of Legal at Ungender Legal Advisory, argues that by taking a pedantic approach the court has delivered a judgment that disregards set law.

——–

On December 2, a division bench of the High Court of Kerala, in the case of Dr. Prasad Pannian v. the Central University of Kerala, considered the issue of whether a complaint of gender discrimination can be regarded as a complaint of sexual harassment under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act of 2013 (Act).

The High Court ruled that for an instance to be construed as sexual harassment in a workplace it should be an 'express or implied sexual advance, sexual undertone or unwelcome behaviour which has a sexual tone behind it'. Any other instance will not attract the provisions of the Act.

To summarise, as per the Kerala High Court, an instance of gender discrimination is not sexual harassment.

Pannian Judgment Violates Principles of CEDAW

In 1993, India ratified the Convention of Elimination of All Forms of Discrimination Against Women (CEDAW), adopted by the United Nations General Assembly in 1979. It lays down articles on the elimination of discrimination against women in all spheres of life, including employment.

The Committee on Elimination of Discrimination Against Women has continually studied the CEDAW and given its comments to State parties for implementation of the CEDAW principles.

"Equality in employment can be seriously impaired when women are subjected to gender-specific violence, such as sexual harassment in the workplace," says the Committee.

The Committee recommended that State parties, including India, implement, "legal measures, including penal sanctions, civil remedies and compensatory provisions to protect women against all kinds of violence, including inter alia violence and abuse in the family, sexual assault and sexual harassment in the workplace."

One can understand, from a conjoint reading of the CEDAW principles and recommendations, that gender discrimination is the genus and sexual harassment is its specie.

Supreme Court on Sexual Harassment and Gender Discrimination

In 1997, the Supreme Court of India in Vishakha v. State of Rajasthan examined CEDAW principles to hold that gender equality, being a fundamental right, includes protection from sexual harassment and the right to work with dignity, both of which are universally recognised basic human rights. It is difficult to counter this when Article 15 of the Constitution of India itself prohibits discrimination based on gender.

The Vishakha Guidelines were to hold the field to redress instances of violation of the right of a woman to work with dignity till appropriate legislation is passed.

From 1997 to 2013, various judgements including the High Court of Delhi in Punita K. Sodhi v. Union of India held that "While sexual harassment would be a specie of sex-based discrimination, the latter could encompass a whole range of commissions and omissions, not restricted to acts that partake of or express unacceptable sexual acts or innuendoes."

These judicial pronouncements solidified the stance that instances of sex-based discrimination are to be redressed as instances of sexual harassment by the committee formed under the Vishakha Guidelines.

Recently in Nisha Priya Bhatia vs. Union of India, the Supreme Court has held that "the approach of law as regards the cases of sexual harassment at workplace is not confined to cases of actual commission of acts of harassment but also covers situations wherein the woman employee is subjected to prejudice, hostility, discriminatory attitude and humiliation in day to day functioning at the workplace.

Taking any other view would defeat the purpose of the law."

It is baffling, to say the least, that even though all the above material was brought before the High Court by the lawyers representing the respondents in the Dr. Prasad Pannian case, the judges took a pedantic approach.

The court did not pay any heed to either the Constitution of India, CEDAW principles, the Statement of Objects and Reasons of the Act of 2013 and judgments, including the latest one by the Supreme Court of India.

The bench went by the literal definition of 'sexual harassment' under the Act to hold that 'gender discrimination' does not categorically fall under the definition and thus cannot be redressed by the Act.

To quote Salmond "the essence of law lies in the spirit, not its letter, for the letter is significant only as being the external manifestation of the intention that underlies it."

The Kerala High Court ought to have taken into account the spirit of the Act. By not doing so it has passed a pronouncement which disregards the law and facts and is hence per incuriam. The judgment deserves to be set aside by the Supreme Court, lest it will give leeway to discriminate against women employees without being caught in the redressal framework of the Act.

(Suruchi Kumar is an Advocate at the Supreme Court of India and the Head of Legal Services at Ungender Legal Advisory. This article is published as a part of The Leaflet- Ungender Legal Advisory collaboration project that examines the intersection of law, gender and workplace. The views are personal.)