The recent order of the Bombay High Court, which restrained reporting cases under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) without getting specific permission from the court, has received criticism stating that it would only favour the accused.
A member of the Forum Against Oppression of Women and various other women’s and civil society organisations and individuals have written a letter to the Chief Justice Dipankar Datta of the HC urging that the guidelines issued in the said order be withdrawn. Stating that “Justice must not only be done but must also be seen to be done”, the letter says that by such an order, the court was extending this protection to the accused as well.
“We are of the strong opinion that these guidelines are excessive, hinder public access to judgements, create opacity around judiciary and overburden the proceedings under the POSH Act, and are thus, counterproductive to the objective of ensuring minimum delays and a speedy access to justice devised by the POSH Act. The Order will not only silence women but will also have a chilling effect on the media and society at large in speaking up against perpetrators of sexual violence and harassment,” reads the letter.
On September 24, the HC had issued guidelines regarding hearings in cases related to Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and its reporting in the media. It restrained “both the parties, advocates, witnesses 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”.
The letter states that even after the Vishakha Guidelines and the POSH Act comes into existence there have been instances of women being victimised for complaints of sexual harassment at workplace.
India has evolved laws to protect the anonymity of the survivor/victim of sexual violence since publicizing their identity exposed survivors to further violence, stigma, shame and victimization.
“It is also meant to provide space to survivors to recover from the trauma of the assault. Survivors of sexual violence require tremendous courage to come forward and report the violence, and their privacy remains intimately linked to their survival,” adds the letter.
Seeking withdrawal of these guidelines, the letter states that “the Court is apparently extending this protection to the accused as well.”
It further states that the order has come at a time when “powerful men accused of sexual harassment continue to attempt to suppress women’s voices on social media and in news media” with gag orders.
It further adds, “The order of the Court will invariably strengthen the hands of large corporates and their powerful men to protect dominant perpetrators of sexual harassment from scrutiny and legitimate public comment.”
The Section 228A of the Indian Penal Code allows a survivor of sexual assault to disclose her identity to public. However, this order denies that right to the survivor. “It forces her (survivor) to hide her identity and the identity of the person who harassed her without taking into account her choice and her freedom of speech,” adds the letter.
Besides, the new guidelines mandate all hearings to be held either in chambers or in-camera and require the physical attendance of parties to the proceedings, with no online or hybrid facility for hearings. The letter states, “This will only make the proceeding onerous, especially on women who do not live within the jurisdiction of a particular court.”
Furthermore, as case records / orders / judgments of the case are not to be uploaded the record of the proceedings / orders passed will be inaccessible to the parties, requiring frequent travel on his / her part.
“This amounts to absolute prohibition and is excessive and in fact, contrary to the interest of the parties. Orders and judgments of courts form part of public record, clarifying positions of law and the basis for a precedent led judicial system. Restricting public access is not only unnecessary but erroneous,” adds the letter.
Some other organisation which have signed the letter include People’s Union for Civil Liberties, National Alliance of People's Movements (NAPM), All India Democratic Women's Association, All India Progressive Women's Association, ASHNI Foundation, Awaaz-e-Niswaan, Health Ethics and Law Institute of Forum for Medical Ethics Society and SPARSH.
