INTRODUCTION
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (the PoSH Act) was enacted with the objective of protecting women from the evil of sexual harassment at the workplace and provide an effective redressal mechanism for incidents of sexual harassment.
For an effective inquiry and redressal mechanism, the aspect of confidentiality is critical. Under the PoSH Act, the confidentiality provision is given under Section 16. Section 16 provides that the publication of sensitive information related to sexual harassment cases is prohibited. This sensitive information includes the identity and addresses of the aggrieved woman, details of the defendant and witnesses, information related to conciliation and inquiry proceedings, recommendations of the Internal Committee or Local Committee, and the action taken by the employer. The provision further in its proviso states that information regarding justice secured by the victims can be published, on the condition that the name, address, identity, or any such information of the victim and witnesses is not disclosed.
It has been almost a decade since the enactment of the PoSH Act, despite this, the victims of sexual harassment hesitate to come forward owing to their fear of compromising their privacy, which might result in shame, humiliation, and setbacks in their careers. Hence, the aspect of confidentiality of sensitive information related to PoSH cases becomes imperative. The aspect of confidentiality was discussed by the Bombay High Court in 2021, where certain practical and operational difficulties that arise during the investigation of sexual harassment cases were discussed and the Single Judge Bench[1] called for a detailed guideline for anonymising the identities of parties.
CONFIDENTIALITY GUIDELINES
The Bombay High Court gave detailed guidelines for the protection of the identities of the parties from being disclosed to be implemented as a working protocol for future orders, hearings, and case file management.
1. ORDERS
The identities of the parties should be kept anonymous in all orders-
The names of the parties shouldn’t be mentioned in the order sheets.
The parties should be referred to only as plaintiffs and defendants in the body of the order, and not by their names.
The personally identifiable information (PII) such as email ids, mobile or telephone numbers, addresses, etc. of the parties involved, including the witnesses, should not be mentioned in the body of any order.
Orders and judgments on merits are not to be uploaded; only orders giving general guidelines can be uploaded.
All the orders and judgments are to be pronounced only in Chambers or in camera and not in open courts.
2. FILING PROTOCOLS
The documents containing personally identifiable information should not be retained by the Registry when any affidavit, application, or pleading is being filed.
For the purpose of verification of identity, the Registry may ask for the production of an identity document, however, a copy of any such document should not be retained on file.
The parties should be anonymised even in the short titles of all further affidavits as given at the head of this order.
The Registry should not enter the email id, mobile number, Aadhaar number, or any other PII of any of the parties or witnesses in the Case Information System, under any circumstance.
3. ACCESS TO CONFIDENTIAL INFORMATION
No one except Advocate-on-Record with a current and valid vakalatnama can be allowed to take inspection or copies of any filing or order.
The entire record should be kept sealed and shouldn’t be given to anyone without an Order from the court. Fresh filings should also be sealed and kept with the main record.
Without an order from the court, the record cannot be digitised by any third-party solution provider. Directions from the court are to be sought if the record is to be digitisered.
The depositions by the witnesses should not be uploaded.
4. HEARINGS
The hearing of the case shall only be conducted in Chambers or in camera.
All hearings are to be attended physically; no option of online or hybrid hearing will be given.
The hearing should only be attended by the advocates and the litigants.
Only the Court Master/Associate or Sheristedar and the stenographer or person providing secretarial assistance should be present during the hearing, other court staff should leave the court. The support staff such as clerks, peons, etc. should also leave the court.
5. PUBLIC ACCESS
Any order cannot be released in the public domain without obtaining a specific order from the court.
Only the order or judgment which is fully anonymised can be released in the public domain.
6. MEDIA DISCLOSURE
The parties involved, their advocates, and the witnesses are forbidden from disclosing the contents of any order, judgment, or filing to the media including social media, without specific leave of the court.
The witnesses are required to sign a statement of non-disclosure and confidentiality, along with the usual oath.
7. PROHIBITION OF RECORDING
All forms of recording or transcribing of any part of the proceedings are strictly forbidden.
8. PROCEEDINGS IN OTHER COURTS
Since in the present case the plaintiff had an appeal before the industrial court or the labor court, that court was strictly directed to adopt and comply with the present or any future guidelines.
9. BREACH
Publishing the names, addresses, or any other PII of the parties is absolutely prohibited. This prohibition also applies to the situation where information about the parties was obtained by using the contents already in the public domain.
The conditions of anonymity should be strictly complied with by everybody including the media.
The failure to comply with the conditions of anonymity and other conditions mentioned in the guideline will be considered contempt of court.
AFTER-EFFECTS OF THESE GUIDELINES
These guidelines were challenged by the Forum Against Oppression of women on various grounds. They argued that by making the orders and judgments inaccessible to the common public, the Bombay High Court had expanded the ‘circle of silence’ in cases of sexual harassment of women. They sought withdrawal of the said Order on the following grounds:
i. Confidentiality
It was argued that the court passed the said guidelines on the assumption that all parties in PoSH cases are equal and failed to consider the lone voice of the victim against big corporates. The identity of the victim is protected under the Section 16 of the PoSH Act to protect them from further violence, shame, stigma, and victimisation. However, the court extended this protection of the identity of the accused without any reasonable justification. It was contended that such protection will strengthen the ability of big corporates and persons in a dominant position to silence and suppress the voices of the victims of sexual harassment. This comes especially when no other law provides this veil of anonymity to the accused.
ii. Gagging the survivor
It was argued that under Section 228A of the Indian Penal Code, 1860, the victim of sexual harassment has the right to decide whether she wants her identity to be revealed in the public domain. However, by putting a blanket ban on the disclosure of the identities of the parties under the present guideline, the court has taken away this choice and her freedom of speech. Seeing one person speak about their experiences encourages others to come forward and stand in solidarity. But preventing the victim from speaking about their experience will rob others with similar experiences of the chance to stand in solidarity.
iii. Making access to justice prohibitive
They contended that by mandating all the hearings to be conducted in chambers or in-camera and no online or hybrid facility for hearings, the whole proceeding will be more burdensome for the victims not residing within the jurisdiction of the particular court. The guidelines do not provide any provision to accommodate the victim’s right to ask for a person to provide her support and comfort. It was argued that the requirement of maintaining the anonymity of the parties is absolute and breach of such provision will result in being pronounced guilty of contempt of court, which is not proportionate with the objective behind issuing the guidelines.
iv. Transparency
The guideline prohibits the publication of the orders and judgments passed on merit and mandates anonymisation of all the records of PoSH cases, which is argued to be excessive and contrary to the interest of the parties. Such unreasonable prohibition overcomplicates the procedure of hearings, restrains access to justice, prescribes excessive punishments, and proscribes public discussion & scrutiny. Restricting access to orders and judgments to the public has no reasonable justification. It was contended that these guidelines will increase the already existing opacity of the judicial system and hinders transparency and accountability.
In March 2022, the Bombay High Court clarified that its order containing guidelines to protect the identities of parties in proceedings under the POSH law and to restrain media reporting & uploading of judgments did not have larger applicability and was confined to that particular case only. The reason given for confining the applicability of such guidelines was that a single judge has no authority or jurisdiction to issue any rules binding the entire Court.
CONCLUSION
The PoSH Confidentiality guidelines were laid by the Bombay High Court with the objective to safeguard the identities of parties involved in cases of sexual harassment at workplaces. It reinforces the importance of maintaining confidentiality and ensuring that sexual harassment complaints are handled in a sensitive way & investigated in a confidential manner. It serves as guidance for not only the courts but also the employers, Internal Committee members, and the witnesses to enable a system where the victim feels secure and confident to file their complaints of sexual harassment at the workplace.
Employers can use this as a guiding principle to include specific provisions with respect to maintaining the anonymity of parties in their internal policies. The guidelines regarding encrypting party statements and evidence can also be incorporated into the internal policy to ensure that no unrelated third party can access sensitive information without permission. Further, a provision for breach of confidentiality may be added to the disciplinary policy to punish employees violating the confidentiality principle.
However, the implementation of such guidelines by judicial courts while dealing with sexual harassment might result in more harm than gain. Putting a complete ban on any reporting about the case and restricting access to orders and judgments will ultimately serve the interests of the accused more so than the victims. Protecting the identities of the accused who has been found guilty, prevents the exposure of perpetrators and allows them to continue their pattern of abuse and harassment.
These guidelines are not proportionate to the objective behind framing it. It is not only excessive but also hinders transparency & accountability by not allowing access to orders and judgments to the common public. It overcomplicates the judicial proceedings, therefore going against the aim of the PoSH Act to provide speedy justice to victims of sexual harassment in the workplace. These guidelines may have a deterring effect on victims of sexual harassment and assault to speak up against their perpetrators. Protection of sensitive information is crucial, however, placing a blanket ban on standard procedures is not the solution. The guidelines should be framed by giving reasonable justification and ensuring that the rights of all parties are protected.
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