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Indian court ruling “ensures confidentiality” in sexual harassment cases
30/09/2021
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Bombay High Court
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John VDLD
John van der Luit-Drummond is editor of International Employment Lawyer

Workplace disputes containing allegations of sexual harassment of female employees in India will only be heard in camera or in a judge’s chambers, according to new court guidelines that also restrict media reporting of sexual harassment rulings.

The new guidelines from the Bombay High Court state that the “names of both the parties will not be mentioned” in orders and judgments, which “will not be delivered in open court” or in “online or hybrid” hearings and cannot be uploaded to the court’s website.

Passing the order, Justice Gautam Patel said protecting the identities of parties in cases under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act and Rules 2013 (PoSH Act) was “imperative” and “in the interests 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,” he said.

The guidelines state that the names of the parties will not be mentioned in orders which shall instead be anonymised, for example, “A v B” or “P v D”.

The body of court orders will not refer to parties by their names but only as plaintiff or defendant, and there will be no mention of any personally identifiable information such as email or physical addresses, or telephone numbers. The same applies to witness details.

All hearings must be by physical attendance, the guidelines continue, with only the advocates and the litigants permitted to attend.

Except the court master or sheristadar – the chief officer in Indian courts entrusted with receiving and checking pleas – and stenographer, all other support staff must leave the court during the hearing.

The guidelines also include a requirement for a court order permitting the release of any case documentation into the public domain. “This will be on the condition that only the fully anonymised version of the order of judgment is let into the public domain for publication.”

“All persons, including the media, are required to ensure strict compliance with these conditions of anonymity. Failure to do so will be a contempt of court.”

Parties to the dispute, as well as their advocates and 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”.

Case records will be kept in sealed envelopes and will not be issued to any person without the court’s permission.

In spite of the PoSH Act containing a clause requiring all parties to treat the matter and the names of the parties as confidential, the provision does not extend once the matter reaches the courts

“The judgment of the Indian court is a first-of-its kind in possibly the entire world and extremely relevant in the context of the law on prevention of sexual harassment,” says Vikram Shroff, the Mumbai-based head of HR Law at Nishith Desai Associates.

“Confidentiality is a critical element in such sensitive matters and the court’s decision will go a long way in allowing the victim to have more confidence in the system.”

India’s law on the prevention of workplace sexual harassment came into existence following the Supreme Court’s landmark 1997 decision in Vishaka v State of Rajasthan, providing guidelines for all workplaces to follow. This latest judgment from the Indian court is likely to have a similar effect, suggests Shroff.

“In spite of the PoSH Act containing a clause requiring all parties to treat the matter and the names of the parties as confidential, the provision does not extend once the matter reaches the courts,” he explains. “Accordingly, the court ruling closes the loop in a way that ensures confidentiality of the parties throughout the entire process.

“There is, however, a flip side as information and updates on PoSH Act case law may no longer be easily accessible. Considering that it is a relatively new law, interpretation of the courts on various provisions remains critical for a better understanding of the law.”

Further developments to India’s jurisprudence on workplace sexual harassment shows the nation’s courts are continuing to interpret provisions of the PoSH Act.

In Malabika Bhattacharjee v Internal Complaints Committee, Vivekananda College and Ors, for example, the High Court of Calcutta found that the PoSH Act applies to sexual harassment complaints between members of the same gender.

Meanwhile, in Anil Rajagopal v State of Kerala and others, the Kerala High Court held that sexual harassment in the workplace must include an express or implied sexual advance or unwelcome behaviour which is “sexual” in tone.