Malathy SB and Ors v. State of Karnataka and Ors WP 11745 of 2023 Kar HC

This month’s entry concerns a case which arose through an unfortunate series of incidents, but which signposts to important future developments in sexual orientation and gender identity laws in the country. In this matter, an employee of a Bangalore based company alleged harassment regarding his sexual orientation and caste identity. The case presents a complex factual situation in which the employee felt increasingly undervalued in the organization; his work received neither recognition nor feedback, his superiors did not speak to him professionally, and jokes and innuendos about his sexual orientation peppered the sarcastic remarks made to him by his colleagues. When he complained to his superiors, things got worse and his colleagues taunted him calling him a snitch (Arrey sir aapse kaun kya bolega, kise apni Naukri nahi pyari hai !’/’ Arrey sir lijiye kursi lijiye warna meri naukri chali jayegi). The employee finally committed suicide but before taking his life, he filed a sexual harassment complaint with his company and a case under the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Upon his death, his father filed an abetment to suicide case against his alleged harassers, viz., colleagues and superiors from the company. The present case asked whether the abetment case could be quashed. The consideration of the question raised an important question of law and fact. I shall take each in turn.

I. Does the Sexual Harassment of Women at Workplace Act 2013 Provide Protection to Queer Men too?

Fed-up with the treatment at the office and through non-response to his various complaints, the employee filed a sexual harassment complaint to the internal complaints committee of his office constituted through the aegis of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [‘POSH’]. The complaint remained un-investigated and we do not hear much about it in the case. The POSH Act provides a framework for the addressing sexual harassment against female employees in workplaces. This is the first recorded instance in which the Act has been used by a queer man to report sexual harassment. This raises an important question of law—can the Act, the purpose of which is to address sexual harassment at the workplace, be expanded by judicial interpretation, with rising awareness of different forms of sexual harassment against other constituents as well?  Whereas the mandate of the Act is to protect women from sexual harassment, sexually coloured remarks which create an intimidating work environment, coupled with humiliating treatment likely to affect a person’s health or safety, the kind alleged by the deceased, is squarely contemplated as sexual harassment by the Act (S 2(n) r/w 3(1)). This case calls for the extension of that normative understanding to persons beyond women. In a prior case, Milind Mamlekar v Goa University and Ors[1]  the Bombay High Court has indicated that harassment because of sexual orientation could be covered by POSH, but there has not been a direct occasion to test this claim in any case. The relevant extract from the Milind case states:

sexual harassment carries a definite connotation…
includes such unwelcome sexually
determined behaviour (whether directly or by implication), all
physical contact and advances; a demand or request for sexual
favours; sexually-coloured remarks/acts; derogatory comments,
conduct or any such behaviour based on the gender identity/ sexual
orientation of a woman or any other unwelcome physical, verbal or
non-verbal conduct of sexual nature. [para 22, emphasis mine

The above-mentioned quote contemplates only women as victims of sexual harassment but does allow for the possibility of the harassing being relation to one’s sexual orientation. This case would have provided an opportunity to test whether the POSH Act could be extended to cover queer men as well.

II. Could the Colleagues be Charged with Abetment to Suicide?

An associated question of fact that arose in this case is whether the superiors and colleagues could be found guilty of the crime of abetment to suicide (S 306 Indian Penal Code) which carries a jail term of up to 10 years. While the question remains to be decided by the case, important directions were provided by the court. The court stated that actions which tarnished the self-esteem of a ‘hypersensitive person’ who suffered an ‘infirmity that they have no control over’, or words or deeds that drove a person to the wall, would all prima facie constitute ingredients of abetment. As prima facie ingredients are made out, the court declines to quash the FIR.

It is not wholly promising that the court characterizes the deceased as hypersensitive and infirm. However, the court does consider that different persons may react to stressors differently and a one size fits all approach to mental health would deeply diminish the importance of mental health issues (citing observations made by the Supreme Court in L. Bheema Naik v. State of Karnataka[2]). The Mental Healthcare Act of 2017 does not provide any guidance on the determination of abetment to suicide cases and no recorded case illuminates the judicial stance on similar facts. The settled law on the matter is to determine whether the acts or words of the abettors can be said with reasonable certainty to lead a person to take their own life. In this instance, the court must conduct an intersectional analysis weighing the deeds of the deceased’s colleagues in light of his sexuality, caste position, and position in the company. That, I believe, will provide the most comprehensive answer to whether an abetment case is made out in this instance.  While no doubt this case will exhort us to again consider the need for an anti-discrimination legislation, situations such as these cannot really be addressed without addressing the homophobia in our society. Longer term solutions must therefore contemplate both legal and extra-legal strategies for changing homophobic behaviour.

[1] 214 WP 628 of 2013.

[2] CrP 3515/2017 (Kar HC)

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