Supreme court on Gender Neutral Amendments

Supreme Court’s Verdict on Gender-Neutral Amendments to its Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India Regulations, 2013

Introduction: Binu Tamta and Anr. vs. High Court of Delhi and Ors. (Misc. Application No. 2308/2023 in W.P.(C) No. 162/2013) was decided on November 07, 2023. The Hon’ble Supreme Court held that the object and purpose of the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations, 2013 (henceforth ‘GSSH Regulation’) was to protect an ‘aggrieved woman’ from sexual harassment at the workplace, i.e., the Supreme Court of India. The SC emphasized that the GSSH Regulations did not cover individuals within the LGBTQIA+ umbrella and amending them to include this group would dilute the intended purpose.

Petitioner’s Submission: Petitioner No. 2 submitted that GSSH Regulation were notified on August 06, 2013, by the SC. The GSSH Regulations are applicable to an ‘aggrieved woman’ defined under Regulation 2(a), however in view of subsequent development of the law and recognition of the constitutional rights of LGBTQIA+ community, the Regulations are inadequate to cover them in the grievances including the harassment at workplace. Therefore, relying on National Legal Services Authority (NALSA) vs. Union of India, (2014 5 SCC 348), an order to make the GSSH Regulations inclusive was needed.

Petitioner No. 2. prayed for the Court to direct:

  1. That ‘aggrieved women’ [as defined in Regulation 2(a)] be supplanted with “aggrieved persons” to reflect the gender-neutral protection of the  GSSH Regulations.
  2. 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”.
  3. That GSSH Regulations be amended as necessary to ensure that it permits persons of all genders to avail the redressal mechanism provided therein.
  4. That reports be furnished regarding the carrying out of sensitization activities, outlining the applicable policy, frequency of such activities and publication.
  5. That there is formulation of a committee to assess the adequacy of the present functioning of the GSSH Regulations and appropriately conducts sensitization activities and recommends changes required.

Judgment: The Court held that “the existing GSSH Regulations are in order to protect an ‘aggrieved woman’ in the workplace”. The Regulations were formulated in accordance with Articles 14 and 15(3) of the Indian Constitution extending the constitutional right of equality.

Further, it held that “the definition of ‘aggrieved woman’ as it exists would not cover a person who is belonging to the LGBTQIA+ umbrella”. The Court noted that “the object and purpose of the GSSH Regulations is to protect an ‘aggrieved woman’ in the workplace. There is no remedy for a person who suffers sexual harassment other than the one covered by the Regulations, however, the amendment of the Regulation cannot deal with the same. An order amending the Regulations would “dilute and denude the whole purpose and object of the Regulations and its effects”.

The Court relied on State of Jammu and Kashmir vs. A.R. Zakki (1992 Supp (1) SC 548) to observe that a writ of mandamus cannot be issued to the legislature to enact a particular legislation and to the executive to exercise its power to make rules, in the nature of subordinate legislation.

It also relied on Union of India vs. K. Pushpavanam (2023 SCC OnLine SC 987) to observe that a Constitutional Court would not issue a writ of mandamus to the legislature or to a rule making body to enact a law on a particular subject and in a particular manner.

Conclusion: Petitioner No. 2, as a response, submitted that she would withdraw the application and make a representation before the Gender Sensitization Committee of the Supreme Court for formulation of another body of GSSH Regulations to cover persons from LGBTQIA+ community for their protection from sexual harassment at the workplace.

– Lakshita Bhati

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