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The Delhi High Court has held that a teacher who is accused of sexual harassment by a student cannot take the defence that his act was welcomed by the student.
“..there can never be any question of a teacher seeking to justify having committed acts, admittedly of a sexual colour and connotation, towards a student, seeking to urge, in his defence, that the acts were not “unwelcome”…sexually coloured conduct or behaviour, towards a student, by a teacher, is completely proscribed, morally as well as legally..”
The Court has added that a teacher can also not take the defence that the student provoked the allegedly delinquent behaviour on his part.
” Students may be impressionable, and infatuation, towards a teacher, on the part of a student, is not an unknown phenomenon. It may be pardonable for a student to harbour such an infatuation, towards the teacher; it is, however, entirely unpardonable, for the teacher, to succumb to the infatuation, and reciprocate..”, it has said.
The Court has further held that whether the student was being taught by the particular teacher against whom the allegation of sexual harassment was made or not is irrelevant as teachers in an educational are loco parentis not only towards the students whom he teaches but to every student studying in the institution.
“A teacher who, instead of maintaining this high degree of moral conduct, indulges in sexually coloured text messages, or telephonic conversations, with his student, has no place in the institution and is an insult to the entire teaching community. For a teacher who regards himself as Dushyant to the student‟s Shakuntala, there can be no lesser punishment, in administrative civil law, then wholesale expulsion from the portals of the institution.”
The Judgement was passed by a Single Judge Bench of Justice C Hari Shankar while hearing a challenge to the Delhi University’s decision to compulsorily retire the petitioner.
The petitioner was accused of sexually harassing an M. Phil. student in the Department of Hindi, the University of Delhi at the time when he was a Professor in the Department.
The complaint was referred to the Apex Complaints Committee (ACC) under Ordinance XV-D of the Ordinances governing the University of Delhi. The ACC found that the allegation of sexual harassment against the petitioner was true and made several recommendations to the University’s Executive Committee. Based on the ACC Report, the Executive Council decided to compulsorily retire the petitioner.
Aggrieved by the decision, the petitioner moved the High Court under its Article 226 jurisdiction.
Before the High Court, amongst other grounds, the petitioner laid emphasis on the use of the word “unwelcome” in Clause 2 (viii) of Ordinance XV-D, and in clause (a) of the Explanation. Emphasis was also laid on the words “without the latter’s consent or against the person’s will”, as employed in clause (c) of the Explanation.
It was the petitioner’s case that the textual and verbal exchanges between his client and the student were not “unwelcome” or without the consent of the student.
He argued that in fact, he had been “provoked” by the student to get into such exchanges and any person who was placed in his position would have reacted similarly.
After hearing the parties, the Court opined that the definition of “sexual harassment” under Ordinance XV-D would include, not only conduct conforming to the circumstances outlined in the definition but also any other conduct as would be understood, commonly, to constitute “sexual harassment”.
“Inclusive definitions have necessarily to be expansively construed. Ordinarily, when a definition is worded in inclusive terms, the common and ordinary parlance understanding of the expression would continue to apply. At times, courts have interpreted the expression “includes”, as contained in definition clauses, to expand the ambit of the expression defined, beyond the boundaries of the commonplace understanding of the expression.”
It thus concluded that in attempting to understand the concept of “sexual harassment” as defined in Ordinance XV-(D), it would not be justifiable to restrict the scope of the interpretation to the specific types of conduct detained therein.
The Court further took the opportunity to discuss the concept of “unwelcome” acts. It observed that “unwelcome acts” ought to be distinguished from acts done with the consent of the other party.
Observing that the word “welcome” or “unwelcome” denotes a state of mind, the Court said,
“If a person welcomes an act, that, by itself, denotes free, voluntary and willing consent. An act is “welcome” when there is an active element of conscious and willing acquiescence, by the person, to the doing of the act. Contrariwise, an act is “unwelcome”, when the person, on whom the act is perpetrated, does not invite the doing thereof, or “welcome” the act.”
Coming to the facts at hand, the Court remarked that the relationship between a student and teacher was sacred and partakes of divinity.
Therefore, a slightest sexual tinge indelibly tarnishes the relationship and consigns it to profligacy, the Court said.
The Court opined that a teacher facing sexual harassment allegations was foreclosed from urging that the remarks were not “unwelcome”. It clarified that concept of “unwelcome” might be a factor in cases allegation of sexual harassment between two adult colleagues, or two adults working in the University. However, it could never apply to the equation between the teacher and a student.
Holding that sexually coloured conduct or behaviour towards a student by a teacher is completely proscribed, morally as well as legally, the Court added that a teacher could also not take the defence that the student provoked the delinquent behaviour.
Therefore, rejecting the petitioner’s interpretation of the definition of “sexual harassment” under Ordinance XV-D the Court said,
“Such an interpretation, which is clearly against public interest has, in the opinion of this Court, necessarily to be eschewed. What has to be seen, in such circumstances, is not whether the conduct of the teacher is welcome, or unwelcome, to the student, but as to whether it is welcome, or unwelcome, to societal interest, and to preservation of the societal moral fabric..”
In view of the above, the Court concluded that the University’s decision to compulsorily retire the petitioner from service did not warrant any interference. The writ petition was accordingly dismissed.
The petitioner was represented by Advocates Manish K. Bishnoi and Tanvi Sapra.
The respondents were represented by Advocates Beenashaw N Soni, Tanya Agarwal.
Read the Judgement: