New Bombay HC Guidelines For Workplace Sexual Harassment Cases: Media Can’t Reveal Names Of Either Party! Advantage For Perpetrators?

The recent Bombay High Court judgement states that POSH proceedings shall be strictly in-camera. While ensuring anonymity could help the survivor, will it not act as an advantage for the perpetrator?

The Bombay High Court in the course of issuing guidelines cases regarding Sexual Harassment of Women at the Workplaces has specified that these cases will now be heard either in-camera or in the judge’s chambers. The orders cannot be passed in open court or uploaded on the web portal of Bombay High Court.

For starters let us look at what is in-camera proceeding and why is it necessary here.

Section 327 (2) of the Criminal Procedure Code specifies that trials for offences of rape, gang rape, rape committed by a public servant etc. have to be conducted in-camera. Section 327 (3) of the Criminal Procedure Code, clearly specifies that printing publishing, or reporting in-camera proceedings without the permission of the court shall be unlawful. Courts can also decide to conduct in-camera proceedings in cases of matrimonial disputes or disputes concerning sensitive issues as reported here.

Thus the practice of in-camera hearings has been a part of our judicial proceedings for years, but the guidelines recently issued for mandating them for POSH cases is the only new phenomenon here.

This mandate may appear to be for the survivor’s benefit, but is it really so?

What do the new guidelines framed by the Court specify?

New guidelines for hearing, passing orders, and reporting of judgements under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) were passed through an order passed by the Bombay High Court on September 24^th, 2021.

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In these guidelines

• the Court has barred media outlets from reporting on judgements under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) without the court’s permission.
• the Court specified that in the order delivered in the case, the names of the parties will not be mentioned and they will be referred to as A, B, etc. Neither can personal details like phone numbers or e-mail IDs of the parties be mentioned in the order. The witness names or personal details cannot be mentioned either.
• the orders cannot be delivered in open court, only in-camera or the judge’s chamber.
• the orders and judgments specifically pertaining to POSH cases will not be uploaded.
• they can be released in the public domain only upon receiving specific permission from the court. Otherwise even a social media post by the concerned parties is not permitted.
• if permitted for publication only a fully anonymised version of the order shall be published.
• the hearings shall be conducted in-camera, no online or hybrid hearings shall be permitted.
• any form of recording of the hearings is strictly forbidden.
• any violation of the issued guidelines shall be treated as contempt of court.

Relief for survivors of workplace harassment who worry about stigma?

The main reason most cases of sexual harassment go unreported is due to the unwanted stigma and shame that society attaches to such cases.

The Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) makes it compulsory to have an internal complaints committee at any workplace with 10 or more employees, irrespective of it being a private or public organisation. But often these committees are only on paper and organisations treat such cases in a prejudiced manner, especially if the perpetrator is a person in a position of power. Those working in organizations with less than 10 employees or those working in the unorganised sector do not even have access to an internal complaints committee. Also, having a Local Complaints Committee in each district has been made compulsory, but again, this exists only on paper.

Would survivors who have approached an internal complaints committee but have not received satisfactory help choose to make a police complaint, about the sexual abuse as well as against the internal complaints committee? I doubt it. Unfortunately, in such cases, society places the onus entirely on the woman to prove the truth of her allegations. In addition to this, there is the social stigma of being sexually abused, which may hold her back.

The recent Bombay High Court guidelines bring a big advantage in such cases by ensuring the complete anonymity of the survivor. Since the witnesses’ names and details will not appear on the record, they could also come up without hesitation to testify. This could encourage more women who are survivors of sexual harassment at the workplace to seek justice without inhibition and worry of being subjected to social stigma.

But the guidelines also protect the perpetrators – is this fair?

The guidelines’ stance on anonymity though beneficial for the survivor and seeks to protect her identity and privacy, extending the same protection to the perpetrator is not justified. The fact that the publication of the perpetrator’s name has been prohibited even in the judgment only strengthens the belief that the perpetrator has been given an unfair advantage. He can continue to indulge in his nefarious behavior under the garb of anonymity.

There is already too little of awareness created about the rights available to a woman at work under the POSH act, and most women in the unorganized sector including domestic help are left in the lurch. Now, the unfair anonymity and protection provided to a perpetrator increases the disadvantage further, and would only act as a deterrent for the survivor. Finding the perpetrator in a position of advantage would make the survivors question the fairness of the justice process being doled out.

The necessity for providing anonymity to the perpetrator must only be till the period of trial, and must cease as soon as the perpetrator has been proven guilty. Also, a public list of such perpetrators must be made easily available. A gender-equal workplace is still a faraway dream in this country, but at least let’s make a safe workplace a reality for the country’s women.

Image source: a still from Hindi short film Vikalp

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