Why SC Rejected Plea For LGBTQIA+ Inclusion In Harassment Regulations

The Supreme Court refused a plea to amend its present regulations for sexual harassment, seeking to make them gender neutral. The defendant sought to make amendments in the Gender Sensitization and Sexual Harassment of Women at the Supreme Court of India (Prevention, Prohibition and Redressal) Regulations (2013), for including constitutional rights of LGBTQIA+ persons.

The bench comprising Justices B.V. Nagarathna and Ujjal Bhuyan were hearing the plea of Advocate Binu Tamta and Senior Advocate Vibha Datta Makhija. Senior counsel Datta Makhija submitted that the present Regulations are “are wholly inadequate” to include LGBTQIA+ persons. The petitioners were relying on the National Legal Services Authority (NALSA) vs. Union of India (2014) case, which holds that transgenders fall within the purview of the Indian Constitution.

The amendments requested by the petitioners were to amend the term "aggrieved woman" to "aggrieved person", to define "sexual harassment" in gender-neutral terms, to ensure that persons of all genders are permitted to avail remedies in the 2013 Regulations and to formulate a committee that can assess the present functioning of the Regulations and recommend changes.

Apex court not convinced

However, the court rejected the plea, stating, “We are of the view that it would be inappropriate to direct the aforesaid amendments to be made to the 2013 Regulations, as otherwise the whole purpose and object of the said Regulations would be diluted and denuded of its effect."

The Court noted that these regulations were enacted in terms of Article 15(3) of the Constitution which talks about special provisions for women. The Regulations were notified by the apex court in the same year that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was formulated.

The Court emphasised that if such amendments are carried out then “focus will be lost from the principal objective being the prevention of sexual harassment of women at the Supreme Court of India.” It further added that the remedy does not lie in amending the existing Regulations. 

The Court placed its reliance upon the decisions of the State of Jammu & Kashmir vs. A.R. Zakki (1992) case and the Union of India vs. K. Pushpavanam (2023) case, to mark that a Constitutional Court would not issue a writ of mandamus to a legislature or rule-making body for the enactment a particular legislation. 

In this regard, the petitioners withdrew their plea and stated that they would make a representation to the Gender Sensitization Committee of the Supreme Court, to formulate a separate body of regulations for LGBTQIA+ persons for their protection from sexual harassment in the Supreme Court.

Suggested Reading: 6 Judgments That Paved The Way For LGBTQIA+ Rights In India