Prevention of Sexual Harassment at the Workplace - Guidelines Surrounding the Disclosure of Identities of Parties
In September 2021, the Bombay High Court issued a detailed set of guidelines in the case of P v. A with regards to securing the personally identifiable information of parties. Considering the sensitive nature of such cases, the Court opined that it was imperative to protect the identities of the parties from any kind of disclosure. Hence, it set down a protocol to be followed for future orders, hearings and case file management protocol, which is briefly detailed below:
- Anonymous Identities: Names of the parties in the orders would remain anonymous. The title of the orders would read as ‘X’ v. ‘Y’ or ‘P’ v. ‘D’ and the body of the order would make reference to the parties by using the words ‘Plaintiff’, ‘Defendant’ etc.
- Personally Identifiable Information: Any kind of personally identifiable information (PII) such as email ids, mobile or telephone numbers, addresses, aadhar numbers, etc with regards to the parties and witnesses would not be mentioned in the order. The guidelines also prevent the retention of any such PII document during the process of filing an application, pleading or verification of identity.
- Publication of Orders: Orders/Judgements would be delivered in private i.e. in chambers or via in-camera proceedings. These orders would also not be recorded, transcribed or uploaded. If any order is to be released into the public domain, it would require a specific order of the Court and even then, only the anonymized version of such order would be released
- Disclosure: All parties and advocates are forbidden from disclosing any content of such order, judgment or filing by either providing it to the media or through any other means (including social media) without the specific leave of the Court. Witnesses would, in addition to the usual oath, be required to sign a statement of non-disclosure and confidentiality. Failure to abide by these conditions would count as a contempt of Court.
- Breach: The prohibition on publishing the PII of the parties is absolute and has a wide enough ambit to accommodate event those situations wherein such information has been acquired through sources already available in the public domain. Failure to strictly comply with these conditions of anonymity would result in a contempt of Court.
While releasing these guidelines, the Court noted that they were “the minimum required” and would be subject to any such revision or modification as necessary. However, some critique with regards to the policy has already arisen. Certain aspects of the guidelines such as preventing hybrid proceedings, especially in times when we are yet to emerge from shadows of the pandemic, is difficult to comprehend. Mandating in-person proceedings may slow down the delivery of justice which discourages victims from pursuing legal action. To add to this, experts have also questioned the idea behind protecting the identity of a convicted offender as such kinds of blanket restrictions may encourage the perpetrator to continue such acts behind the assured veil of anonymity and prevent the aggrieved women from speaking out to caution others through their experiences.
In recognizing these fallacies, a plea has been filed in the Supreme Court seeking quashing of the Bombay HC order, stating that the guidelines can be “used as a tool by powerful corporations to allow sexual harassment of women at the workplace, violate the provisions of the POSH Act and also suppress the voice of aggrieved women with the help of such orders.” The decision of the Supreme Court in this matter is highly anticipated.