Bombay High Court POSH guidelines risk silencing victims of sexual harassment

Source: This post is based on the article “Bombay High Court POSH guidelines risk silencing victims of sexual harassment” published in Indian Express on 14th October 2021.

Syllabus: GS 2 Mechanisms, Laws, Institutions & Bodies Constituted for Protection & Betterment of These Vulnerable Sections.

Relevance: Understanding the problem with POSH.

Synopsis: There is a need to take a deeper look into the POSH Act after the guidelines given by the current judgement.

Introduction

Bombay High Court in P v. A & Ors has released guidelines to protect the identities of those involved in POSH (prevention of sexual harassment) trials.

What are these guidelines?

Disclosure: It prohibits the disclosure of the identities of the victim, accused and witnesses. It also prohibits the parties from disclosing any information relating to such trials (including the final order/judgement) to the media or publicizing the same via social media, without securing permission from the Court.

Limited Access: It limits the entry of the people with only court stenographer, plaintiff, defendant and their lawyers to be present. Even court orders and judgements will not be delivered in open court.

Judgments in POSH cases will no longer be published or uploaded for public consumption without the permission of the court. Even if the court allows to do it, the publication can be done only in an anonymized version. For any lawyer to access this judgment, a court order will have to be obtained.

Hearing: It mandates all the hearings to be held in-camera or in Judges’ Chambers.

Breach of these conditions will be contempt of court.

What is Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act)?

It mandates government and private organizations to redress matters quicker than the judicial process.

Read more: Sexual Harassment of women at the workplace – Explained pointwise
What is the problem with the current judgement?

Physical Attendance: The revised guidelines mandated to appear physically in order to keep the proceedings confidential. This can bring delay in the judicial process and further discourage victims from pursuing the trials.

Confidentiality: Like in the case of sexual abuse complaints, the identity of the victims should be kept secret to prevent ostracisation from society. This is expressly prohibited by Sec 228 A of the Indian penal code. However, in the case of POSH, this is not done expressly as the complainant and respondent can reveal their identity.

Moreover, POSH Act requires the company to reveal in its annual audit report are the actions it has taken(without revealing the names of parties) against individuals who have indulged in the Act of sexual harassment. This blanket ban by the court on revealing the identity of perpetrators of crime can result in the perpetrators operating under the radar and carrying out their heinous acts.

Transparency: Keeping the judgments out of reach of lawyers or media goes against the norm of transparency. Since India follows the principle of common law, the judiciary relies on the previous judgements to make current judgements. So making judgements publicly available is important.

What should be the way forward?

As the #MeToo movement had shown, such sexual harassment goes unnoticed and unspoken. Making such judgements inaccessible will only further lead to the silencing of such movements.

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