The Bombay high court has come up with guidelines on reporting on sexual harassment at workplace cases, complete anonymity, in-camera hearings part of guidelines

by- Kaljal K Iyer

The Bombay high court has come up with a fresh set of guidelines for cases regarding Sexual Harassment of Women at Workplaces, granting anonymity to both the accuser and the accused. As per a report in Live Law Justice Gautam Patel, while stressing on a minimum requirement for guidelines, noted,

“It is imperative…to protect the identities of the parties from disclosure, even accidental disclosure, in these proceedings. This is in the interest of both sides.”

The court did say that these are just initial guidelines and will be subject to revision or modification as needed. The guidelines seek to anonymise the identities of all parties. The orders will not mention their names, instead using initials in the title and would mention them as plaintiff and defendant in the body. No order will be pronounced in open court and it will also not be uploaded on the High court website either.

All in all, this seems to come from a place of protecting the victim, preventing the victim’s identity being connected to the case for posterity, especially in the internet era.

There are a few questions this raises though about anonymising the convict

  1. While it is fair to anonymise while the person is still an accused, what is the larger logic of anonymising the offender once convicted? This is still unclear.
  2. In the absence of uploaded judgements, how do HR managers and others do background checks on applicants and avoid anyone who could possibly be a serial sexual offender? National database of sexual offenders is only accessible to law enforcement agencies in India.
  3. If the worry is about false cases, POSH is not the only crime, in which there are false cases. We have seen lives upended by wrongful application of sections of the IPC, UAPA and several other laws too. There is no similar protection to the accused in such cases. Will these guidelines, spark similar demands for anonymisation in other crimes?
  4. In the case of serial offenders at the workplace, much before these laws were enacted, women used to rely on office whisper networks of the sisterhood, to guard themselves against predatory men. #MeToo and subsequent changes in the law, encouraged women to speak up more freely about these incidents. The guidelines prevent both sides and all parties to refrain from mentioning any details of any order in media or social media, without permission from the court. There is a likelihood that the anonymisation coupled with this clause in the guidelines may be misused by serial offenders as grounds for defamation suits. With no order copy available, how is one supposed to use the defence of truth against defamation?

One can get behind the idea of not holding these hearings or giving out the orders in open court, as at times, this leads to sensational coverage, especially if someone even mildly famous is involved as a party to the case.

Post #MeToo, there were several men who sent notices to media houses and websites to remove content on the grounds that cases were not filed by their accusers. In many such instances, the men succeeded in getting their names removed too. Perhaps, instead of a gag order on reporting or near total anonymisation of convicted sexual offenders, the country needs proper guidelines on the Right to be Forgotten. That could more effective in protecting rights of both the victims and anyone wrongly accused of such crimes. One hopes subsequent revisions of these guidelines, consider these aspects.