On 6^th September, 2018, the Supreme Court of India has passed a landmark judgment on Section 377 of the Indian Penal Code (“IPC”). The provision criminalized consensual sex between homosexual adults grossly violating their constitutional right to life. The Court held that this Section is unconstitutional to the extent that it criminalizes consensual sex. Section 377 had been challenged in court way back in 2009 as well and the High Court of Delhi had decriminalised the same. However, when it reached the Supreme Court in 2013, the Supreme Court restored its position and consensual sex between homosexual adults remained criminalized. This Section came into limelight again in 2016 when persons (many well-known) directly affected by this provision filed a petition before Supreme Court and it was referred to a Constitution Bench (i.e. a 5 Judge Bench) to decide on the constitutional validity of Section 377. This Five Judge Bench declared Section 377 unconstitutional and stated that “Sexual orientation is natural. Discrimination on the basis of sexual orientation is violation of freedom of speech and expression”, and “Section 377 has travelled so much that it has been destructive to LGBT community. It has inflicted tragedy and anguish, which are to be remedied”.

Now the question is – does this Section have anything to do with sexual harassment of workplace? What has been decriminalised is ‘consensual sex’, hence, sex without consent or rape is still a crime. Therefore, in our view, anyone approaching another at workplace and using their power, position or designation to force, coerce or pressurise the other for sex would wholly and squarely fall under sexual harassment at workplace. Many people ask us – ‘but are men really harassed?’ In our experience, we have come across many instances where men are harassed but they do not talk about it out loud for fear of being judged and not being a ‘mard’. Recently, however, we have seen two important incidents being reported.

The first one is reported by First Post on 10^th August, 2018 where it said that “Ravi Karkara, Senior Advisor on Strategic Partnerships and Advocacy to the Assistant Secretary-General and Deputy Executive Director at UN Women, is under investigation for sexual misconduct and at least eight men have accused him of using his position to sexually harass them…” On the same point, the Hindustan Times also reported that “Lee, a 25-year-old policy activist, is the victim whose complaint triggered the investigation… Steve Lee first met Karkara in 2009 as a 16-year-old delegate to the UNICEF and the two would meet several times more. For one of them, on December 1, 2016, Lee drove from Ottawa to Montreal to meet the official in his hotel room, where, he told the publication, Karkara “grabbed Lee by his genitals through his pants”. “He does this with a lot of young men, and I don’t really think it’s sexual favours he’s looking for. He enjoys the fact that he’s at a position of such high authority that he can do this and they can’t really do anything about it,” Lee told Newsweek…” The Daily Hunt reported that “According to Newsweek and Guardian, the allegations range from obscene gestures at the workplace, sending pornography links, sending messages to the young men to masturbate and asking them questions of a sexual nature. Newsweek’s report said that Karkara’s alleged victims kept quite for a long time fearing retaliation.”

The second one has been reported by Deccan Chronicle on 20th June, 2018 stating that a senior student of a very well known Institution has been charged with sexually harassing a junior male student of the premiere college and faces disciplinary action but not expulsion. It has also shared a copy of the email written by the aggrieved which states that, “…I came to his room, where he did things that were beyond my imagination. He started by talking about life in insti, talking about this and that, then finally brainwashing me that he is very lonely as he’s the only child in his family, that he needed a brother to talk to. Then he hugged me and forced me to lie down on the bed, and then he kissed me. I just froze…” It also stated, “…he had already being [sic] sending creepy “I love you” messages on messenger which I reluctantly replied fearing what if he told this to people? I would not be able to show my face, I thought….I did not let anyone know of this, although I was all torn apart from the inside. I couldn’t concentrate on my studies, had fallen into depression…”

While for many people it may be difficult to fathom that men could be sexually harassed, however, with reports such as the above, it only becomes clear that men have also been harassed over time and are susceptible to harassment. The number may certainly be lesser compared to women’s harassment, however, men are vulnerable too. While both the cases discussed above are examples of harassment of men by men, however, the perpetrator could be anyone – a man, woman or any other gender. In fact, in this regard, an article in the Hindu dated 2^nd May, 2017, really stayed with us. A statement in the article mentions, “Assume for a second that I did file charges. I know the system like the back of my hand. The girl would be called for questioning, and if she lied and said that it was me who was harassing her instead, her version would take precedence over mine and I’d be screwed.” The article goes on to say that “He spoke to a couple of his friends and colleagues, who laughed it off and called him a lucky so-and-so,” and “the SP remarked, “Ladki chhed rahi hai toh chhid jao na! [If a girl’s teasing you, why don’t you just be happily teased].” Unfortunately this is the sad reality and perhaps these are few of the many reasons why many men do not come out with their concerns and it appears to us that women get harassed and men don’t!

As a result, Sexual harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“Law”), as the name itself suggests is a Law for the benefit of women only. Under it, organizations are required to make policies for protection of women against sexual harassment at workplace. Even though many organizations now have gender neutral policies, (i.e. they have extended the benefit under Law to their male and other gender counterparts as well), with the Supreme Court’s judgment on Section 377, perhaps it is time for the law makers to think –

What if at a workplace, a man propositions another man several times, in spite of the recipient saying no? What if sex is made a prerequisite for promotion by a male boss to his male subordinate? What if there is kissing, forceful touching, groping or other physical contact established and this behaviour is unwelcome to the recipient? What happens if a consensual relationship goes wrong and the partners continue to work at the same workplace while one tries to create a hostile work environment for the other? What if one of the partners is at a powerful position and obtains consent from the other partner without free will? Will these behaviours not amount to sexual harassment of the recipient who is a man? And in that case, should the remedy under Law not be made available to them? Hence, should the Law not be amended to provide a remedy for men as well? Should we not take a proactive approach instead of a reactive one or ‘wait’ for a ‘nirbhaya’ like incident to happen with a man as well? These are some of the things that require thought.

May be we can end with the case of Dr. B.N. Ray vs. Ramjas College & Ors., 2012 (130) DRJ 277, filed by a male student in the Delhi High Court alleging sexual harassment by his professor. The Court observed that both men and women are equally exposed to being sexually harassed and even if two interpretations were possible, one should lean in favour of the interpretation that will protect the safety and honour not only of females but also the males.

P.S.: Right to live freely and be able to make our own choices in personal life is the most basic & natural human right. No one can ‘give’ it to us. It ‘belongs’ to us as humans. We at Inclusion at Work are extremely proud and wish to congratulate the Supreme Court and our society for recognizing that and opening up to a more inclusive society.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, Partner Inclusion at Work