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India's Law on Prevention of Sexual Harassment at Workplace: Analysis of Case Laws - Part 4

INTRODUCTION

In a first of its kind judgment, the Bombay High Court has issued guidelines to ensure confidentiality of hearings pertaining to matters of workplace sexual harassment of women. The guidelines issued by the court, in the matter of P v. A & Ors.1 (“PoSH Confidentiality Guidelines”), relate to inter alia the manner in which such cases should be heard and handled; how decisions should be recorded, pronounced and communicated and the precautionary steps to be followed while reporting such matters including by the media.

The PoSH Confidentiality Guidelines shall serve as a working protocol for the courts. The objective is to protect the identities of the parties from even accidental disclosure. The PoSH Confidentiality Guidelines as pointed out by the Bombay High Court are the bare minimum to be followed by the courts and are subject to necessary revisions or modifications.

BACKGROUND

One of the key objectives of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("PoSH Act") has been to provide for an effective grievance redressal mechanism for women who have been unfortunately subjected to workplace sexual harassment. However, the fact remains that owing to the fear of having to compromise their privacy resulting in shame, anxiety, humiliation, and fear, a large section of women still continue to take a back seat when it comes to reporting incidents of workplace sexual harassment.

In order to protect the confidentiality of the parties concerned, section 16 of the PoSH Act restricts the contents of the complaint, the identity and addresses of the parties (including the aggrieved woman, respondent and witnesses), any information relating to conciliation and inquiry proceedings, recommendations of the Internal Complaints Committee (ICC) or the Local Complaints Committee, and the action taken by the employer or the District Officer under the provisions of the PoSH Act from being published, communicated or otherwise being made known to the public, press and media in any manner. However, the law permits dissemination of 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. In the event that any person is found to violate the aforementioned confidentiality obligations, the PoSH Act provides for a monetary penalty of INR 5,000 (approx. USD 70)2.

In spite of the afore-said confidentiality restriction, as observed by the Bombay High Court, there has been no established guidelines so far in such matters, often leading to a scenario where the confidentiality of the parties stood compromised. Therefore, it had become imperative for the court to lay down certain guidelines in this respect.

GUIDELINES FOR HANDLING POSH CASES

The PoSH Confidentiality Guidelines include the following directions:  

Failure to comply with the conditions of anonymity laid down by the courts including by the media and/or any attempt to record or transcribe any part of the proceedings will be treated as an offence amounting to contempt of court and will be punished accordingly.

CONCLUSION

The objective of the PoSH Act is not only to implement an effective grievance redressal mechanism, but also to create a system wherein women feel secure and confident to file their complaints of sexual harassment at the workplace. While the law accomplishes that goal admirably in several different ways, confidentiality has been a critical element which has often been overlooked especially at the time of litigation.

The PoSH Confidentiality Guidelines are therefore an important step in the right direction as it will serve as a guidance not just for the courts but also as a reminder to the employer, ICC members and witnesses, besides the parties who are directly involved in relation to the complaint of sexual harassment at the workplace. The ruling of the Bombay High Court also reinforces the importance for employers to take similar measures to ensure that sexual harassment complaints are investigated and handled in a confidential manner without exposing the identities of the parties involved. In view of the PoSH Confidentiality Guidelines, the parties may now feel more confident to make use of the court process.

While there is a good enough reason to protect the confidentiality of the parties given the personal and sensitive nature of such matters, on the flip side, it needs to be seen as to how this can be balanced against the need for transparency and accountability. Also, the PoSH Act being a relatively new law, employers and ICC members have been keenly following the principles laid down by various courts in such matters while interpreting provisions of the PoSH Act, which may not be possible going forward in view of the PoSH Confidentiality Guidelines.

It is hoped that the PoSH Confidentiality Guidelines are followed by courts across the country. However, it remains to be seen whether the guidelines would be limited to workplace sexual harassment matters or be extended to cases unrelated to the workplace as well.

 FOOTNOTES

1 Suit no. 142 of 2021, Bombay HC, decided on September 24, 2021

2 Rule 12 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Rules 2013

Nishith Desai Associates 2022. All rights reserved.National Law Review, Volume XI, Number 342
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About this Author

Preetha Soman Lawyer Nishith Desai Assoc. India-centric Global Law Firm
Preetha Soman Lawyer Nishith Desai Assoc. India-centric Global Law Firm

Preetha Soman is a Leader of the HR Laws (Labor & Employment) team at Nishith Desai Associates (NDA). From routine compliance matters to matters involving hiring, workforce management, retention and strategy, employee re-organizations and reductions in force etc., Preetha has worked on a wide range of complex and intricate labor law matters.

She also works very closely with industrial bodies and organizations including NASSCOM to conduct workshops, webinars and awareness programs on Indian labor and employment laws. She has also been...

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Vikram Shroff Attorney Nishith Desai Assoc. India-centric Global Law Firm
Leader of HR Law Team

Vikram is the leader of the HR Law (employment & labour) team at the research & strategy driven international law firm, Nishith Desai Associates with offices in Mumbai, Silicon Valley, Bangalore, Singapore, New Delhi, Munich and New York.He has been employed with the firm since over 22 years.

Vikram has been consistently ranked as India’s leading labour and employment lawyer by most of the leading international publications.  He advises leading technology, media and financial services sector companies in drafting and negotiating employment contracts; non- disclosure...

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