Eliminating anomalies

A completely consensual sex is not considered sexual harassment. However, if what appears to be consensual is actually coercive or a result of pressure tactics, then the situation is different. The Ministry of Women and Child Development, Government of India, has succinctly identified five parameters of workplace sexual harassment, namely sexual nature, subjectivity, unwelcome conduct, impact, and power dynamics.

Harassment occurs when the conduct is unwelcome to the victim. If a woman consents, then definitely it is not harassment. Sometimes, supervisor-subordinate relationships can be problematic due to the power imbalance between the two parties involved. Since the higher-ranking official often holds the authority to suspend, terminate, or provide additional benefits to the subordinate, questions may arise regarding the consensual nature of the relationship.

In a recent criminal case in August 2023, the Karnataka High Court stated that a woman cannot make allegations after 6 years of consensual sex. A similar principle is applied to cases of sexual relationships at workplaces. Many organizational issues arise in the case of consensual relationships between supervisors and subordinates, leading to unnecessary confusion. An additional concern is the allegation of favouritism when the supervisor is lenient with their partner regarding leaves, work hours, promotions, raises, additional benefits, perks, etc. Allegations of unfairness and partiality come into play in such situations.

There are instances when initially the arrangement is consensual; however, when the relationship ends, complaints may arise. Depending on the specific circumstances and changes from consensual to non-consensual, it may or may not constitute sexual harassment. Each case needs to be evaluated individually. Thus, to address such unnecessary issues, it may not be inappropriate to implement policies regulating consensual relationships at the workplace. This is also essential for maintaining the decorum of organizations.

However, quid pro quo is different from consensual relationships. Quid pro quo involves a situation where a superior seeks sexual favours in exchange for a tangible benefit or to avoid withholding a benefit, such as threats of termination, reduction in increments, promises of job security, promotions, etc. Needless to say, this falls under the umbrella of sexual harassment. When it involves this kind of coercion, it cannot be considered consensual. Additionally, creating a hostile work environment constitutes sexual harassment, which includes demeaning comments, display of pornography, and other forms of harassment. Repeated attempts to cultivate personal relationships with reporting employees are also termed as a misuse of designation. If one consents to sexual activity due to the power the other person holds or out of fear of intimidation, detrimental treatment, coercion, threats, etc., such consent is invalid in the eyes of the Indian law and is considered sexual harassment.

Workplace sexual harassment is primarily governed by the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, and the corresponding Rules under the Act. Sexual harassment comprises unwelcome acts or behaviours (whether direct or implied) and includes promises, either explicit or implied, threats of preferential or detrimental treatment in present or future employment, as well as the creation of an offensive and health-risk environment for women. Furthermore, with amendments made from time to time, the law covering criminal offenses viz. the Indian Penal Code, also aims to protect against sexual harassment by providing for punishment for corresponding offenses.

Regarding consensual relationships, the plea of consent is often misused in cases involving children. Recent views expressed by certain authorities have raised significant arguments regarding consensual sex involving minors and its implications under the Protection of Children from Sexual Offenses Act, 2012. The Apex Court has issued a notice regarding a plea against the tendency to describe cases related to the sexual assault of 16-18-year-old children as "consensual and romantic relationships" which goes against the spirit of the POCSO Act. This is a commendable step because, as is commonly known, child victims of sexual abuse often become hostile due to coercion, pressure, etc. Such claims generally work against the interests of children. It is needless to state that issues related to children cannot be compared to those involving adults.

The legislature should consider streamlining various legislations to create straightforward provisions that address these issues comprehensively.

The writer is a practising Advocate in Supreme Court and High Court of Delhi. Views expressed are personal