Bombay High Court Clarifies Confidentiality Guidelines in Sexual Harassment Cases

Judgement Given On : 17/03/2022

The Bombay High Court, in a subsequent order issued on March 17, 2022, provided clarifications regarding its earlier directive dated September 24, 2021, pertaining to the confidentiality of parties involved in cases governed by the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”) and Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Rules, 2013 (“POSH Rules”). The initial order had laid down strict measures to prevent inadvertent disclosure of parties’ identities.

This clarification stems from an interim application filed under Order 1 Rule 8-A and Section 151 of the Code of Civil Procedure, 1908, initiated by Ms. Indira Jaising, representing the ‘Forum Against Oppression of Women.’ The purpose was to seek clarity on the applicability of the non-disclosure requirement outlined in the previous order. In its judgment dated September 24, 2021, the Bombay High Court established comprehensive guidelines to safeguard the confidentiality of parties involved in cases of sexual harassment:

  • Identification in Orders: Parties were anonymized in orders, referred to as “A vs B” or “P vs D.” The body of the order used designations like “Plaintiff” or “Defendant No. 1.” Witness identities remained confidential, and personally identifiable information (PII) such as email IDs, phone numbers, and addresses were withheld.
  • Filing Protocols: Parties were instructed to employ anonymized titles for all subsequent affidavits.
  • Access to Records: Only the Advocate-on-Record with a valid vakalatnama could access or obtain copies of orders. Records, including new filings, were sealed and inaccessible without a court order. Witness depositions were not to be made public.
  • In-Person Hearings: All hearings were held in person, with no hybrid or online options. Hearings took place in-camera or in chambers, with limited attendees.
  • Certified Copy Department: Objections based on the case title were disallowed. Parties were directed to use digitally signed or authenticated copies of orders.
  • Public Access: Disclosing an order to the public necessitated a special court order, and even then, only an anonymized version could be divulged.
  • Confidentiality Obligations: Parties, advocates, and witnesses were barred from disclosing order contents to the media or on social media without special court permission. Witnesses were required to sign confidentiality statements.
  • Recording Prohibition: Any form of recording during proceedings was strictly prohibited.
  • Industrial/Labour Court Proceedings: If a plaintiff had a pending appeal in the Industrial/Labour Court, the High Court would consider existing and future guidelines. Both parties were responsible for ensuring the order reached the relevant court.

Justice G.S. Patel clarified that the original guidelines should not be considered universally applicable rules. Rules of general applicability of this nature would necessitate approval by the Full Court or the Chief Justice. A single judge did not possess the authority to establish binding rules of this nature. Justice Patel also pointed out that the parties themselves had proposed in-camera hearings and privacy protection, particularly after learning of an appeal filed in the Supreme Court regarding the matter. Upon Ms. Indira Jaising’s satisfaction with the clarificatory order, Justice Patel concluded the application. The Bombay High Court’s clarification emphasized that the previous guidelines were specific to the case in question and were not intended for broader application. Maintaining the confidentiality of parties involved in sexual harassment cases remains of utmost importance, subject to future revisions as required. Violations of these confidentiality rules could result in contempt of court.