This article has been written by Dev Shroff.

Introduction

The case P v. A & Ors. (PoSH Confidentiality Guidelines-Suit no. 142 of 2021) highlights the confidentiality Provision under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and briefs about the history of the POSH Act. The confidentiality guidelines are specified under Section 16 of the POSH Act. It also emphasizes the breach of the guidelines specified under the act. This article spotlights the important features of the seven-page guidelines issued by Justice G. S. Patel of the Bombay High Court. A critical analysis of the judgement has also been included in the article which includes lack of transparency by the Bombay High Court, compliance by the Internal Complaints Committee, freedom of the media, etc. 

This article also accentuates the government’s continuing efforts in creating a stimulating awareness of sexual harassment at the workplace. It ends with the hope that the courts should resolve cases pertaining to sexual harassment with utmost secrecy. By reading this, the readers will understand why the names of the petitioner and the respondent have not been revealed and they will gain an insightful knowledge of the recently issued confidentiality guidelines.

Guidelines issued by Bombay High Court on POSH Act – critical analysis

In the recent case of the P v.. A & Ors. (PoSH Confidentiality Guidelines-Suit no. 142 of 2021) the Bombay High Court has issued an order containing certain guidelines relating to ensuring confidentiality of hearings pertaining to matters to the Sexual Harassment of Women (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). The guidelines on confidentiality are meant to serve as a working protocol for the courts. 

Background of POSH Act

Protection against sexual harassment and the right to work with dignity are universally recognised human rights by various international conventions and instruments, including the United Nation’s Convention on the Elimination of all Forms of Discrimination against Women, which Convention has been ratified by the Indian government in 1993.

The background for enacting the POSH Act was due to the fact that sexual harassment results in violation of the fundamental rights of a woman to (i) equality as per Articles 14 and 15 of the Constitution of India (Constitution) and (ii) right to life and to live with dignity as per Article 21 of the Constitution. Additionally, our Constitution guarantees every citizen a right to practice any profession or to carry on any occupation, trade or business, which includes a right to a safe environment free from sexual harassment.

The POSH Act was enacted in 2013 to “provide protection against sexual harassment of women at workplace and for the prevention and redressal of complaints of sexual harassment and for matters connected therewith or incidental thereto.”

Confidentiality provision under POSH Act

Possibly the most important objective of the POSH Act is to provide for an effective grievance redressal mechanism for women in case they have been subjected to workplace sexual harassment. In this respect, the POSH Act requires the parties to ensure confidentiality. 

Section 16 of the POSH Act states as follows:

“Prohibition of publication or making known contents of complaint and inquiry proceedings. – Notwithstanding anything contained in the Right to Information Act, 2005 (22 of 2005), the contents of the complaint made under section 9, the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings, recommendations of the Internal Committee or the Local Committee, as the case may be, and the action was taken by the employer or the District Officer under the provisions of this Act shall not be published, communicated or made known to the public, press and media in any manner:”

In case of breach of such a provision of the POSH Act, a monetary penalty of Rs. 5,000 has been imposed. It is however permitted to disseminate information regarding the justice secured to the victim, subject to the condition that the name, address, identity or any other particulars leading to the identification of the aggrieved woman and witnesses is not disclosed. 

Bombay High Court guidelines – important features

There is reportedly still some anxiety and fear in reporting instances of sexual harassment at the workplace. The Bombay High Court was of the view that it often leads to a scenario where the confidentiality of the parties stood compromised in case of litigation relating to the POSH Act. Accordingly, in the Court’s view, it was necessary to lay down guidelines to ensure confidentiality as it helps protect the identities of the parties from even accidental disclosure. 

The Court was of the view that “It is imperative, therefore, to protect the identities of the parties from disclosure, even accidental disclosure, in these proceedings. This is in the interest of both sides. There appear to be no established guidelines so far in such matters. This order, setting out a working protocol for future orders, hearings and case file management, is the first endeavour in that direction. These are only initial guidelines, and will necessarily be subject to revision or modification as needed. I would suggest that these guidelines are the minimum required.”

The important features of the Bombay High Court’s guidelines are summarized below.

1. The seven-page order issued by Justice G. S. Patel relates to ensuring the confidentiality of the parties in respect of the manner in which such cases should be heard and handled by the courts, including the Labour Courts and Industrial Courts. In fact, the guidelines clarify that “under no circumstances will that Court deviate from these Guidelines”. The guidelines also apply to how decisions should be recorded, pronounced and communicated, and the precautionary steps to be followed while reporting such matters including by the media. 

2. In terms of the filing protocols, any affidavit, application or pleading containing personally identifiable information of any of the parties shall not be retained by the Registry. As a result, for verification of identity, the Registry may ask for the production of an identity document to establish the identity of the deponent, but a copy of any such document shall not be retained on file. 

3. The Registry is also barred from entering the email ID, mobile number, Aadhaar card number or any other personally identifiable information of any of the parties or witnesses. Anyone wishing to access any affidavit, application or pleading will not be permitted, other than the Advocate-on-Record with a current and valid Vakalatnama to take inspection or copies of any filing or order. The entire record shall be kept sealed by the Registry and not be given to any person without an order of the Court.

4. All hearings of cases relating to the POSH Act will only be in Chambers or in-camera, thereby requiring physical attendance of the litigants and their respectful advocates (clerks and peons are instructed to leave the court). As a result, there will not be any online or hybrid facility for hearings. In relation to recording on hearings, the Bombay High Court clarifies that “any form of recording of any part of the proceedings is strictly forbidden” and “any attempt to record or transcribe any part of the proceedings will be a contempt of court.”

5. In relation to each party, the Bombay High Court states that “Both sides and all parties and advocates, as also witnesses, are forbidden from disclosing the contents of any order, judgment or filing to the media or publishing any such material in any mode or fashion by any means, including social media, without specific leave of the court”. 

6. In the case of witnesses, in addition to the usual oath, they must sign a statement of non-disclosure and confidentiality. Also, in the court’s order, no witnesses’ names will be mentioned, nor will their addresses be noted.

7. Henceforth, for the orders to be issued by the courts in cases of the POSH Act, the names of the parties will not be mentioned. The orders will read “A v. B”, “P v. D” etc. Also, in the body of the order, (i) the parties will not be referred to by their names but only as to Plaintiff, Defendant No.1, etc. and (ii), there will be no mention of any personally identifiable information such as email ids, mobile or telephone numbers, addresses etc. All orders and judgments in relation to the POSH Act will be delivered in private and orders and judgments on merits will not be uploaded on the court’s website.

Critical Analysis of the Judgement

I list down some of those areas relating to the Bombay High Court’s order where there is a lack of clarity or will otherwise create challenges.

1. Lack of transparency: The Bombay High Court’s order is likely to lead to concerns especially relating to the need for transparency. Since the PoSH Act is a new law, the interpretation of the courts on various provisions of the PoSH Act is critical, as it helps under the law better, both for employers as well as the courts. In absence of judgements, it will become difficult for others to track the judiciary developments in relation to the law. 
2. Applicability of the guidelines: From a plain reading of the order, it is not entirely clear as to whom the order applies to or for that matter, what kind of orders, hearings, etc. are being referred to, including for example, ongoing cases relating to the POSH Act. 

Unlike the Supreme Court’s guidelines issued in Vishaka v. State of Rajasthan in relation to how employers must deal with complaints of sexual harassment which were applicable to employers in the entire country, these guidelines are issued by a High Court. In view of certain conflicting judgements in relation to Article 227 of the Constitution, it remains to be seen whether these guidelines apply to the High Courts in other Indian states or if it would extend only to the courts in the State of Maharashtra. 

3. Compliance by IC: There is no clarity as to whether the Internal Complaints Committee (IC) constituted by the employers as per the POSH Act also needs to follow these guidelines in terms of investigation of sexual harassment complaints and issuing of the report containing the IC’s recommendations. 

4. Sexual harassment complaint under the IPC and other laws: The guidelines appear limited to cases relating to POSH Act and do not quite extend to sexual harassment complaints under the Indian Penal Code (IPC) which do not involve the workplace. Section 354A of the IPC defines sexual harassment and is unrelated to the workplace. Similarly, the guidelines do not cover harassment of transgenders, which is protected by the Transgender Persons (Protection of Rights) Act, 2019 or harassment of the Scheduled Caste and Scheduled Tribes, which is protected by Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989.

5. Freedom to the media: The guidelines extend to the media and journalists. Failure to comply with the guidelines could be treated as contempt of court. The media is however entitled to considerable freedom of speech and expression under Article 19 of the Constitution and hence the media may continue to enjoy such freedom irrespective of the guidelines. 

6. Accessing POSH Act judgement: The guidelines mandate that the order on merits in case of POSH Act will not be delivered in open courts, nor would they be uploaded online. It entails that for any lawyer to access the judgment in a POSH Act related matter, a court order will need to be obtained. This prohibition may be criticized as it could extend the protection of confidentiality meant for survivors to the harasser as well. It is imperative to mention that, as per section 16 of the POSH Act, there is a bar on disclosing any information related to the identity and addresses of the aggrieved woman, respondent and witnesses, any information relating to conciliation and inquiry proceedings or the recommendations of the ICC. However, even the POSH Act permits disseminating information pertaining to the justice secured. The idea is not just to punish the harasser but also create a deterrence in the organisation. Thus, not allowing the uploading of orders on merits is likely to deter the possibility of shifting the blame and shame on to the perpetrator.

7. Anonymity of identities: The guidelines mandate anonymity in prohibiting the disclosure of identities of both the survivor and the harasser. This may create an asymmetry in denying the survivor of the crime, the right to express even after the accused is found guilty. Furthermore, the firewall, as created in compliance with the guidelines, will bring the perpetrator at par with the survivor. Section 228A of the Indian Penal Code allows a survivor of sexual assault to disclose her identity to public. However, the Bombay High Court’s guidelines appear to deny that right to the survivor.

8. In-person hearings: Finally, the guidelines make it compulsory for all hearings to be held either in chambers or in-camera and require the physical attendance of parties to the proceedings, with no online or hybrid facility for hearings. While the purpose appears to be to protect the privacy of the parties, the guidelines create an asymmetry by making the proceeding onerous. This may particularly impinge upon such affected individuals who might be required to travel long distances as they do not live within the jurisdiction of the concerned court. Furthermore, as case records, orders and judgments of the case are not to be uploaded the record of the proceedings or orders passed will be inaccessible to the parties, again requiring frequent travel on their part.

Conclusion

The POSH Act along with the #MeToo movement and the government’s continuing efforts have been hugely successful in creating greater awareness of the issue of sexual harassment at the workplace. The Bombay High Court’s guidelines are definitely a step in the right direction, and the first of its kind, not just in India but possibly in the entire world. When implemented by various courts, it is likely to help create a system wherein women at the workplace feel secure and confident to report their complaints of sexual harassment and take it to the next level if there are not satisfied with the ICC’s views. The ICC, on its part, will also be more aware of their role and the need to comply with the law, in order to issue the correct decision.While there are some criticisms, the new guidelines of the Bombay High Court are definitely needed and will go a long way in increasing confidence in the judicial system. In fact, the guidelines may be a reminder not just for the courts but also to employers to ensure that such matters are handled with utmost secrecy.

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