Sexual Harassment at Workplace - Bombay High Court Guidelines

Introduction-

According to the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal), 2013 referred to as “the POSH Act”, an aggrieved woman, is a woman of any age, employed or not, who asserts to have been subjected to any act of sexual harassment. Because it is not a mandatory requirement for the woman victim to be an employee, the POSH Act has a wide ambit and can be used to protect victims associated with a workplace in different capacities. The POSH Act applies to both organized as well as unorganized sectors in India. The Act outlines actions and circumstances which may amount to sexual harassment at work, establishment of an Internal Complaints Committee at every workplace to deal with sexual harassment complaints, and specifies the procedure for conducting investigations.

Due to the sheer sensitive nature of such cases, parties involved may undergo mental suffering during the process of adjudication of complaints before the Internal Committee which may also extend to legal proceedings before appropriate Courts. Therefore, it becomes essential for concerned stakeholders to ensure that the process is confidential and discreet and should protect the identities of the parties involved.

Recent observations by the Bombay High Court

The Bombay High Court has recently laid down working protocols for courts, registries, and the media to follow while conducting and covering processes involving sexual harassment of women at work, stating that it is critical to safeguard the parties’ identities under the POSH Act. These guidelines have been formulated with the objective of protecting the identities of the parties involved as currently, there are no such guidelines in place. The High Court also stated that these rules are only a first step towards preserving anonymity in sexual harassment cases and that they only meet the bare minimum criteria.

Highlights of the guidelines –

• In all the court orders, the aim would be to maintain the anonymity of the parties. Therefore, names of the parties involved cannot be included in the order’s body and they will be read as ‘A v. B’ or ‘P v. D’ and likewise.

• Any personally identifiable information such as phone number, residential address, or email address of the witness or any individual associated with the case cannot be included in the body of the order sheet. This bar is absolute and would apply even if the material in question was obtained by utilizing the contents of any judgment or order for the information that was already in the public domain.

• All orders and judgments will be passed privately in Judges’ Chambers or in-camera.

• All Court hearings will be conducted in Judges’ Chambers or in-camera. Physical appearance of concerned parties is mandatory and there shall not be any online or hybrid mode hearing.

• During the hearings, only authorised court staff shall be permitted to be present.

• The Parties must anonymize their titles in any subsequent affidavits or papers.

• No person other than the advocate –on-record with a valid vakalatnama will be permitted to examine or copy any files or orders. The entire record will be kept secret and confidential and will not be released to anybody without a court order, also without the court’s order any third-party solution provider is likewise prohibited from digitizing the record.

• Without the consent of the Court, all concerned parties and advocates are barred from disclosing the contents of any decision, order, or file to the media, as well as from disseminating any concerning material in any form or manner by any means including social media. Witnesses are also mandated to sign a non-disclosure and confidential declaration.

• Court registry will not raise any objection on the grounds of difference in the title of the matter/names of parties.

• If any court order has to be released in public domain, prior and specific permission from the Court is essential.

• Any individual who fails to comply with the mentioned guidelines, particularly the anonymity duties, will be held in contempt of court.

It is pertinent to note that these guidelines are primarily dealing with instances of sexual harassment cases before the judicial courts, including appeals from Internal Committee recommendations.

Conclusion

To safeguard the identities of the parties involved in POSH Act cases, the Bombay High Court on 24th September 2021 set forth these guidelines and are the first of its kind issued by a High Court. The guidelines are highly restrictive and absolutely binding on the concerned stakeholders. Without the approval of the Courts, judgments or orders in POSH Act cases will no longer be published for public perusal and even then, only a completely anonymized version will be authorized.

Essentially, what this means is that any court order relating to cases of POSH Act shall be barred from disclosing the identities and personal details of the parties involved. These guidelines present its own set of challenges in terms of its implementation as well as the accessibility of relevant information of these cases.

One area of concern is that the anonymity of parties’ identities may embolden the accused persons involved. In the event of the accused being found guilty, the protection of confidentiality is extended even further which may result in its misuse by offenders.

It is important to note that though these guidelines are a step in the right direction considering there were none earlier, however the process should evolve, keeping in mind the prevailing dynamic circumstances and striking a balance between the safety of victims and their right to express.