Sexual harassment as defined under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("Act") includes any unwelcome physical contact and advances. While the Act and its interpretation has always been a perception based law where the perception of the aggrieved women as to what she may constitute as sexual harassment, duly supported by relevant evidence, has taken precedence. "
However, the Delhi High Court, in the case of Shanta Kumar versus Council of Scientific and Industrial Research (CSIR) and Others (MANU/DE/3392/2017), while deliberating into the allegations of sexual harassment filed by the complainant, the court has stipulated that physical contact or advances would constitute sexual harassment provided such physical contact is a part of the sexually determined behaviour. Such physical contact must be in the context of a behaviour which is sexually oriented. Plainly, a mere accidental physical contact, even though unwelcome, would not amount to sexual harassment. Similarly, a physical contact which has no undertone of a sexual nature and is not occasioned by the gender of the complainant may not necessarily amount to sexual harassment.
This latest ruling is indicative of the judicial intent to take into consideration other surrounding factors such as whether any unwelcome behaviour is sexually oriented or not besides the perception of the aggrieved women, while inquiring into the allegations of sexual harassment.
This update is authored by Clasis Law, Clyde & Co's associated firm in India
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