When Women Harass Women: What Does the POSH Act Say? Rethinking the Gender of the Perpetrator

Authored by Vishaka S

Introduction: When the “Wrongdoer” Does Not Fit the Stereotype

The Prevention of Sexual Harassment of Women at Workplace Act, 2013 (“POSH Act”) was enacted with a clear and compelling purpose to protect women from sexual harassment at the workplace and provide them with an effective mechanism for prevention and redressal. Its very title, its definition of an “aggrieved woman” and its legislative history make it unmistakably a protective, women-centric legislation.

But does a women-centric law necessarily mean that the person accused of sexual harassment must be a man?

The question may appear straightforward. It is not.

Workplace sexual harassment is often understood through a conventional gender lens where woman is viewed as victim and man as perpetrator. However, the workplace today is considerably more complex. Sexual harassment may involve persons of the same gender, and the conduct causing humiliation, intimidation or violation of dignity does not necessarily depend upon the biological sex or gender identity of the alleged perpetrator.

This precise question came before the Calcutta High Court in the year 2020 in Dr. Malabika Bhattacharjee v. Internal Complaints Committee, Vivekananda College & Ors. The Court held that a complaint of sexual harassment by one woman against another woman is maintainable under the POSH Act. The decision is particularly significant because the Court did not attempt to rewrite the legislation; instead, it reached its conclusion primarily through the language of the statute itself.

The Facts – a Challenge to the Very Jurisdiction of the ICC

The petitioner, Dr. Malabika Bhattacharjee, approached the Calcutta High Court challenging the action of the authorities in entertaining a complaint of alleged sexual harassment against “her”.

The objection was not merely that the allegations did not constitute sexual harassment, but also that the IC did not have jurisdiction since both the petitioner and the complainant were women.

The petitioner argued that the complaint could not fall within the POSH Act relying on Section 2(n), which defines “sexual harassment”, and Section 3(2), which identifies circumstances that may amount to sexual harassment. The petitioner further relied on Section 19(h), contending that the reference to action under the Indian Penal Code contemplated a “male perpetrator”.

The complainant, on the other hand, relied upon Section 2(m), which defines “respondent” as “a person” against whom an aggrieved woman has made a complaint under Section 9. It was argued that the statute itself did not prescribe the gender of the respondent. The University Grants Commission Regulations, 2015, applicable in the educational institution, were also relied upon.

The issue before the Court, therefore, was essentially one of statutory interpretation – can the expression “a person” in Section 2(m) include a woman? The Court answered in the affirmative.

What Does the POSH Act Actually Say?

The starting point of the Court’s reasoning was Section 2(m) which defines a “respondent” as “a person against whom the aggrieved woman has made a complaint under section 9.”

While the Act expressly uses gender-specific terminology for the complainant – an “aggrieved woman”, it does not similarly describe the respondent as a “man” or “male”.

The distinction is important. The Court noted that a plain reading of Section 2(m) brings “a person” within the definition of respondent and therefore includes persons of all genders. More importantly, when Section 2(m) is read with Section 9, there is nothing in the mechanism for making a complaint that excludes a complaint against a person of the same gender.

The focus under the POSH Act  is substantially on the nature of the conduct and its impact, rather than expressly on the gender of the person engaging in it.

What Did the Calcutta High Court Hold?

The Court held that a complaint of sexual harassment could not be rejected at the threshold merely because the complainant and respondent were of the same gender. From the ruling of the court it can be understood that sexual harassment cannot be treated as a static concept.

The Court observed that the definition of sexual harassment must be interpreted against the backdrop of changing social circumstances.

Importantly, however, the Court did not decide whether the allegations against the petitioner were actually proved. It only decided that the complaint was maintainable and could not be rejected at the outset. The merits were left to be determined by the appropriate authorities.

Looking at the Decision in Today’s Workplace

The decision becomes even more relevant when viewed against today’s understanding of workplace relationships and sexual harassment. The POSH Act is, undoubtedly, a gender-specific legislation in designed to provide statutory remedy to an “aggrieved woman”. It does not provide a general, gender-neutral workplace sexual harassment mechanism for every employee.

But it does not necessarily follow that the alleged perpetrator must also be male. There is a conceptual distinction between the gender of the person whom the legislation protects and the gender of the person whose conduct may violate that protection.

A woman can engage in unwelcome sexual conduct. A woman can make sexually coloured remarks. A woman can create a hostile or intimidating environment for another woman. A woman can invade another woman’s personal or sexual boundaries. The fact that both individuals are women does not, by itself, neutralise the character of the conduct.

This interpretation also avoids creating an unusual legal gap. If two women engage in precisely the same conduct as would constitute sexual harassment if one of them were a man, the character of the conduct should not automatically change merely because the perpetrator is a woman.

At the same time, the judgment should not be read as converting every interpersonal conflict between women into a POSH complaint. The conduct must still satisfy the statutory definition of sexual harassment. Ordinary workplace disagreements, bullying or personality conflicts do not automatically become sexual harassment merely because the parties are women.

The judgment therefore expands the potential pool of respondents without diluting the substantive threshold for establishing sexual harassment.

Key Takeaways for Employers and Internal Committees

The POSH Act was born out of a particular historical reality -women were disproportionately vulnerable to sexual harassment at workplaces, and Indian law needed a dedicated mechanism to address that vulnerability. That protective purpose remains central to the legislation, but a protective statute need not be interpreted through a rigid stereotype of who can cause harm.

For employers and Internal Committees, the practical takeaway is that – a complaint by a woman against another woman should not be rejected merely on the ground that the alleged respondent is female. The first question must instead be whether the allegations, if proved, fall within the statutory definition of sexual harassment and whether the complaint otherwise satisfies the requirements of the POSH Act.

Perhaps the larger lesson is that sexual harassment is ultimately about power, dignity, boundaries and unwelcome conduct, rather than simply about the gender of the person who commits the act.

A law enacted to protect dignity must, therefore, be capable of recognising violations of that dignity wherever they occur- even when the person alleged to have caused the violation does not fit the traditional image of a perpetrator.