“Sexual Harassment” under the PoSH Act – Part 2
Physical contacts and advances
In the last episode, we understood how sexual harassment is defined in the PoSH Act. In this and further episodes, we will consider few of those categories in detail.
Any physical contact or advances (which are sexual in nature) is considered as sexual harassment. Therefore, any unwarranted or unwelcome physical contact be considered as sexual harassment.
There are various instances of physical contacts and advances which will be considered as sexual harassment under the law. The spectrum of physical contacts or advances which are considered as sexual harassment is wide. While it has rape, rubbing oneself sexually against another person, fondling and any other type of sexual assault at one end of the spectrum, it also covered physical contacts like hugging, kissing, pinching, patting, giving massage around neck or shoulders, when they are unwelcome. Even leaning over someone, standing too close to someone, touching someone’s hair, clothing or body can be considered as sexual harassment.
In various cases, courts have held following actions as sexual harassment by way of unwelcome physical contact – putting arm around/ on shoulders of the victim, sitting next to the victim and pressing thigh against her, brushing hands on waist, breasts, back or stomach of the victim under pretext of accidental touch, blocking the victim’s way so that she cannot get away, excessively lengthy handshakes etc.
If the victim has allowed someone to touch or hug her in past, it does not mean the harasser too can do so. In fact, the same person who has touched the woman in past may not do so later without her consent. Past actions are not considered a justification for the contact.
Whether or not an incident of physical advance or unwanted touch is sexual harassment will be determined after considering type of contact, the context in which the contact appears and the wishes of the victim. “The perpetrator behaves the same way with everyone, he is touchy feely by nature” is not an acceptable justification to the unwarranted and unwanted physical touches. Everyone has a different set of boundaries when it comes to physical contact at workplace and these need to be respected.
However, it is important to understand that all physical contact cannot be termed as sexual harassment. Only such physical contact which is in context of a sexually oriented behaviour will be considered as sexual harassment. Any accidental touch or physical contact, would not amount to sexual harassment, even if it is unwelcome. Therefore, holding someone by arm, in fit of anger, during an altercation will constitute harassment, but not sexual harassment. This was held in case of Shata Kumar v. Council of Scientific and Industrial Research (CSIR) & Ors. 2017 SCC Online Del 11327
There are certain touches, which may not be considered as sexual harassment if no sexual overtones can be found with such behaviour. Thus, giving someone high-five, shaking hands as part of greetings as per acceptable social parameters, extending hand to someone to help her get up etc. may not be treated as sexual harassment.
Adv. Sayali Ganu Dabake
Founder Partner
LexonomiX
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