A Regression of Rights? The Exclusion of LGBTQI+ Individuals from the Supreme Court of India’s Sexual Harassment Regulations

by | Dec 21, 2023

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About Sampoorna Chatterjee

Sampoorna is a law student at Amity University, Kolkata. Her areas of interest include employment law, labour law, and sexual harassment matters. 

On 7 November 2023, the Supreme Court of India declined a petition seeking to amend the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations 2013 (the 2013 Regulations) to expand the scope of the term “aggrieved woman” to include LGBTQIA+ individuals. The 2013 Regulations are aimed at protecting women from sexual harassment within the court precincts. The term “aggrieved woman”, found in Regulation 2(a) of the 2013 Regulations, is defined as “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 of India precincts but does not include any female who is already governed by the Supreme court service regulations.”

The Court refused to supplant the word “aggrieved woman” with “aggrieved person”, citing that it would dilute the very purpose and object of the 2013 Regulations, thus stripping it of its effect. It added that the 2013 Regulations were framed under Article 15(3) of the Constitution of India, which allowed the State to make special provisions for women and to extend the constitutional right of equality and equal protection of laws to women.

The rule of beneficial construction requires courts to interpret statutes and the provisions contained therein in a way which ensures that the intended benefits and protections are extended to all individuals. For instance, earlier this year, the Delhi High Court observed that the mere failure on the part of the Internal Committee to conclude an inquiry within 90 days as mandated under Section 11(4) of the PoSH Act did not render the complaint or the inquiry void. This highlights the Judiciary’s inclination towards prioritising substantive justice over procedural technicalities. In contrast, the Supreme Court in this case adopted a hands-off approach and declined to issue a writ of mandamus to the legislature or a rule-making body to enact a law on a specific subject and in a particular manner.

On its face, the definition of “aggrieved woman” implies that it is not limited to cisgender women, but includes any individual who identifies as a woman. The decision, however, is not only in complete disregard of the inherent inclusivity embedded within the very language of the 2013 Regulations, but also excludes transgender individuals who identify as women from taking legal recourse against sexual harassment under the very legislation which is aimed to protect women.

The judgment could also instil hesitancy among LGBTQIA+ individuals when reporting instances of workplace sexual harassment. Even with the seemingly inclusive gender-neutral PoSH policies, the lack of legal backing becomes a significant limitation. Complaints lodged by anyone other than women are designated as an organisation’s internal disciplinary issue, effectively circumventing the framework established by the PoSH Act.

By refusing to broaden the scope to include LGBTQIA+ individuals, particularly trans-women, the Supreme Court missed an opportunity to recognise and affirm their rights within the legal framework concerning workplace sexual harassment. This is in stark contrast to the groundbreaking NALSA judgment, which recognised transgender people as a third gender, thereby upholding their constitutional rights.

The departure from recognising evolving societal norms and understandings of gender identity becomes apparent when contrasting it with progressive legal interpretations. For example, in Arunkumar v Inspector General of Registration (2019) the Madras High Court expanded the meaning of the term “bride” in the Hindu Marriage Act 1955 to include intersex persons and trans-women, acknowledging the need to interpret statutes in the light of the legal system as it exists today. Similarly, in Anamika v Union of India (2018), the High Court of Delhi allowed a transgender individual identifying as a woman to file a complaint under Section 354A of the 1860 Indian Penal Code, when she had earlier been instructed by police that only a cis-gender woman could take recourse under that provision.

The Court’s resistance to moving past the cis-normative understanding of the term “woman” is deeply distressing. A decade has passed since the enactment of the PoSH Act, which marked a significant milestone in combatting workplace sexual harassment in India. However, with the passage of time, the nature of challenges and complexities has also evolved. Judicial decisions, especially those rendered by the highest court, wield significant influence over legal interpretations, the trajectory of future judicial pronouncements, and public perception. As such, this decision has the concerning potential to alter societal attitudes towards inclusivity and the protection of LGBTQIA+ individuals in India.

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