Guidelines issued by Bombay High Court on POSH Matters

Guidelines issued by Bombay High Court on POSH Matters: Legal Analysis

On 24th September 2021, in the case of P vs. A & Ors., (“Order”) the Bombay High Court held that in the interest of protecting parties against disclosure of identities in matters related to Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act and Rules, 2013 (“POSH Law”), it is imperative to lay down guidelines regarding anonymity, orders, public access, filing protocols etc. as none exist currently (“Guidelines”).

In this suit, therefore, the Court laid down several guidelines and stated that these ought to be (1) considered the “minimum” requirements and (2) applied prospectively for “future orders, hearings and case file management.” Below are the guidelines in brief:

1. Anonymity: The orders shall not bear the name of parties either in the titles or in the body of the order including the parties’ personally identifiable information (“PII”) such as email ids, mobile numbers etc. Reference would need to be in the manner of A vs. B for example or Plaintiff, Defendant etc. The identities of witnesses shall also not be revealed in the orders.

2. Private / In-camera hearings: All hearings will only be in Chambers or in-camera. There will be no online or hybrid facility for hearings and they must be by physical attendance. Only the advocates and the litigants are permitted to attend hearings. Support staff (clerks, peons, etc), must leave the Court. Except the Court Master/Associate or Sheristedar and the stenographer or person providing secretarial assistance, other Court staff must also leave the court and not be present at the hearing. All orders and judgments will be delivered in private (in Chambers or in-camera) and not in open court.

3. No recording: Any form of recording of any part of the proceedings is strictly forbidden. Any attempt to record or transcribe any part of the proceedings will be a contempt of court.

4. Filing of documents: No PII document shall be retained by the Registry. For verification of identity, the Registry may ask for production of an identity document to establish the identity of the deponent, but no copy of any such document is to be retained on file.

5. Access to documents: The Registry will not permit anyone 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 is to be kept sealed and is not to be given to any person without an order of the Court. The record is not to be digitized by any third-party solution provider without an order of the court.

6. No media disclosure: 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. Witnesses, in addition to the usual oath, must sign a statement of non-disclosure and confidentiality. Failure to abide by these conditions will also be a contempt of court.

7. Access to decisions: Orders/judgments on merits will not be uploaded. If any order is to be released into the public domain, this will require a specific order of the Court. This will be on the condition that only the fully anonymised version of the order of judgement is let into the public domain for publication.

Lastly it said that Plaintiff has a pending appeal before the Industrial Court/Labour Court and such Court will strictly adopt and follow these and any future guidelines.

Analysis of the Guidelines:

1. Who is this Order for? The Order states that “there appear to be no established guidelines so far in “such matters.” This appears to be a general statement not clearly stating who this Order applies to. Further, the Court states that this Order sets out “a working protocol for future orders, hearings and case file management.” This also does not clearly suggest who this is applicable to and what kind of orders, hearings etc. are being talked about. In Para 12 (a) and (b) the Court states that “the Plaintiff has a pending appeal before the Industrial Court/Labour Court. That Court will strictly adopt and follow these and any future guidelines. Under no circumstances will that Court deviate from these Guidelines.” This para also does not clearly state whether these Guidelines are applicable to Industrial Court/Labour Court for the matter at hand only (i.e. the appeal that is pending) or for all future POSH related matters as well. In the absence of express mention, it is unclear whether Industrial Court / Labour Court should follow these Guidelines for all future POSH related matters as well and further clarity would be extremely important for such Courts to proceed.

2. Is it mandatory for Courts and tribunals to follow this Order? The Indian Constitution under Article 227 states that “Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.”

In light of Article 227, any order or guidelines passed by the Bombay High Court shall be applicable to all courts and tribunals within the territory of Maharashtra and Goa. Therefore, these Guidelines shall also be applicable to them, as per above till these Guidelines are (1) set aside by a division bench of the Bombay High Court or (2) Supreme Court. If these are not followed, it would be considered as contempt of court.

It is pertinent to note that, no other High court is bound by these guidelines. However, they may have persuasive value in other states. Hence, further clarity on this Order is extremely important so that other High Courts do not pass similar Orders.

3. Is it applicable to Internal Committees and does it impact its Proceedings? Is it applicable to Internal Committees and does it impact its Proceedings? While it may be argued that Internal Committee has powers of a civil court and thus this Order may apply to ICs as well, however, as per Section 11 of the POSH Law it must be noted that IC has been vested with same powers as a civil court only for:

  • summoning and enforcing the attendance of any person and examining on oath and
  • requiring documents

Hence, it is not a Court. It is a quazi-judicial body (like a tribunal). In this context, it is also important to note the spirit of the POSH Law and that ICs have been constituted at Organizations so that complaints can be redressed internally, survivors have easy access and delays can be avoided.

Given the requirement under Section 16 of the POSH Law on confidentiality, IC is duty bound to handle such matters confidently in any case and from a practical standpoint, in order to abide by Section 16, ICs conduct such hearings with parties confidently, use only A and B for titles and “Complainant” and “Respondent” throughout the inquiry report and keeps all documents under lock and key with access to IC members.

Further, Guidelines such as in-camera hearings, uploading of orders, inspection of documents etc. is not applicable to ICs in any case as they do not conduct such hearings in “open court”. IC also does not engage in media disclosures and inquiry reports and recommendations are not circulated in media.

The Guidelines also state under Clause 11 that “(a) Any form of recording of any part of the proceedings is strictly forbidden and (b)Any attempt to record or transcribe any part of the proceedings will be a contempt of court.” This is something that ICs may have to do for conducting a fair inquiry. However, there is lack of clarity on:

  • Who is barred from recording and transcribing (it is also unclear how the Court itself will record discussions and conduct hearings)
  • If one is barred, what is the procedure they ought to follow to ensure fair, unbiased, neutral and thorough approach towards an inquiry.

This needs clarity from High Court urgently in the interest of justice for parties.

4. Does this Order impact reporting and media? Protection of identities of parties is extremely important. However, the Guidelines appear to be grey in several places. For example, if one of the Guidelines states that names of parties have to be anonymised, what is the need for a Guideline stating orders / judgments cannot be uploaded? One of the other guidelines states that witnesses must sign a Non-Disclosure Agreement (“NDA”) – it is unclear why this has been provided for witnesses only and not for parties concerned or the stenographer and other court staff who are allowed to be part of the in-camera proceedings.

Further, as per Proviso to Section 16, “information may be disseminated regarding the justice secured to any vicitim of sexual harassment under this Act without disclosing the name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and witnesses.” The POSH Law provides for punishment for persons who may breach confidentiality. But it does not cover parties and they can approach media for reporting if required (Section 17). It is unclear what the fate of these provisions would be in light of these Guidelines.

Also, the Guidelines, with stringent restrictions on parties, public and media accessing information of sexual harassment cases, falls right in the middle of the ever-present debate between right to privacy (Article 21) and freedom of Press and right to freedom of speech and expression (Article 19). The courts through the years have tried to strike a balance between the people’s right to their privacy and the freedom of people and media to report on issues relevant to the public.

As per Indian laws, given the sensitivities involved in some matters, Courts do take the stance to hold some matters in camera and not publish the names on Orders. Certain sensitive cases involving sexual assault, rape etc. mandate that the identity of the victim be kept confidential, but it still doesn’t bar the court or the public from accessing orders and judgments passed on merit and reporting. Perhaps, the reasoning behind not putting a complete bar is that citizens should become aware of the consequences of such actions and such decisions / publicity acts as a ‘deterrent’ and this task can be substantially fulfilled by media. It is therefore, unclear, why such a stringent bar has been put on POSH related matters.

Rules and regulations speak about how media should report sensitive matters. Further Guideline son reporting can be put in place. The media can be sensitised to report such matter appropriately and without disclosing names. However, reporting is one of the most important tenets and media is one of the pillars of Indian democracy. Issuing a Guideline that such orders cannot be uploaded also hits this very pillar at the core!

5. Does the Order impact Legal Fraternity and Practitioners? In India, apart from legislations / statutes, body of law is also derived from judicial pronouncements such as orders, judgments, directions etc. of courts (commonly called Common Law – a system of jurisprudence which is said to have originated in England). Hence, it is apropos to note that analysing and understanding orders and judgments are integral to Indian judicial system. The entire legal fraternity looks up to decisions to better understand interpretations and applicability of laws and get clarity on otherwise grey areas under Laws.

Having orders and judgements available in the public domain, further aids in amending one’s approach to the law, clarifies the gaps in understanding of the law and saves time and effort of parties and the courts alike from similar legal issues being raised repeatedly. In our opinion, to put a blanket ban on uploading of decisions will rob the entire fraternity of knowledge & interpretation of matters by courts and will disallow one to advice clients appropriately which may only lead to further litigations.

6. What about impact on Public at Large? It is pertinent to note that even under section 16 of the POSH Act, there is 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, recommendations of the Internal Committee etc. but even the POSH Law permits disseminating information pertaining to the justice secured (provision mentioned above). This is because it helps members of the public understand what sexual harassment may be, that organizations will not take such instances lightly and it thereby helps change mind-sets. Such decisions also strengthen the belief of public at large in the judicial system and the fact that they can report their concerns.

Therefore, when the law permits dispersing certain information of an internal inquiry, it is unclear why the Court’s pronouncements should not reach public at large – for their knowledge, learning, growth, healthy criticism etc.

The critical analysis of any order of any court can only be done comprehensively when it can be related to the context, background and history of the case (for example – It is difficult to gauge the perspective of the Court in releasing these Guidelines without being privy to the facts of the case and objective of the Court. It would be difficult to comment on whether the restrictions imposed by Bombay High Court in the abovementioned suit are suo-moto or at the request of either parties as the facts of the case have not been released to the public. Moreover, the case is filed as a Suit under Original Civil Jurisdiction of the Court whilst an appeal is pending before an Industrial/Labour Court which further raises lack of clarity over the contingencies which directed the Court to pass such Guidelines).

Availability of decisions ensures that one can see the rationale and context of the decision. With the Guidelines in place, that may become extremely difficult and one may be left wondering. Hence, though the objective behind framing the Guidelines, may have been in the interest of protecting the parties, further clarity from Court on the grey areas will clarify the intention and hopes.

– Adv. Shivangi Prasad – Corporate Lawyer, External Member & Trainer, Head – Legal & Compliance, & Shreya Kanaujiya, Legal Associate & Lawyer

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