Inclusion Of LGBTQIA+ In Definition Of “Aggrieved Woman” Would Dilute And Denude Principal Objective Of Sexual Harassment Regulations: Supreme Court

The Supreme Court held that amending the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition, and Redressal) Regulations, 2013 (Regulations) to include other persons - LGBTQIA+ would dilute and denude the main objective and purpose of the legislation.

The Court disposed of an Application filed by Advocate Binu Tamta and Senior Advocate Vibha Datta Makhika seeking gender neutralization of Sexual Harassment Regulations. They sought the amendment of the term ‘aggrieved woman’ to 'aggrieved persons' under Regulation 2(a).

The Bench comprising Justice B.V. Nagarathna and Justice Ujjal Bhuyan observed, “We are of the view that it would be inappropriate to direct the aforesaid amendments to be made to the 2013 Regulations as otherwise the whole purpose and object of the said Regulations would be diluted and denuded of its effect. Moreover, we feel that the focus will be lost from the principal objective i.e., prevention of sexual harassment of women at the Supreme Court of India, if such amendments to the Regulations which were framed following enactment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 are made”.

The Petitioners sought the following: “I) Direct that references to “aggrieved woman” [as defined in Regulation 2(a)] be supplanted with “aggrieved persons” to reflect the gender-neutral protection of the Regulations;

II) Direct that “sexual harassment” be defined in gender-neutral terms to bring within its purview acts of sexual harassment committed by Respondents of the same sex as the “aggrieved person”; III) Direct that Regulations be amended as necessary to ensure that the Regulations permit persons of all gender to avail the redressal mechanism provided therein;

IV) Direct that reports be furnished regarding the carrying out of sensitization activities, outlining the applicable policy (if any), frequency of such activities and publication thereof; and

V) Direct the formulation of a committee to assess the adequacy of the present functioning of the Regulations apropos sensitization activities and recommend changes required in the Regulations to increase the frequency, scope and entities thereof”.

The Court noted that the regulations were drafted under Clause 3 of Article 15 of the Constitution. The regulations were an extension of the constitutional right of equality and equal protection of the law. 

Furthermore, the Court observed that the intent and purpose of the Regulations is to protect an aggrieved woman in the workplace. Amending the provisions to include a person other than a woman where no regulatory body exists would not resolve the issue, the Bench asserted. The Court noted that directing amendments in the regulations would drift away from the intent and purpose of the legislation. If the prayers of the Petitioners are accepted, it would dilute and denude the effect of the Regulations, the Court added.

The Bench observed, “If a person other than an ‘aggrieved woman’ is subjected to sexual harassment and there is no body of Regulations to extend protection to such a person and a question arises regarding the manner in which such a protection could be extended, in our view, the answer does not lie by amending the existing Regulations”.

Additionally, the Court reiterated that a writ of mandamus cannot be issued to the legislature to enact a particular legislation. The Court further emphasized that a government could not be directed via a writ to introduce a particular bill before the House of the Legislature within a time frame.

Accordingly, the Court disposed of the Application.

Cause Title: Binu Tamta & Anr. v High Court Of Delhi & Ors.

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