The Mandate on Confidentiality: Gleaning from the Judiciary
Confidentiality remains a formidable challenge in PoSH (Prevention of Sexual Harassment) cases. The PoSH Law mandates strict confidentiality particularly with regard to the contents of the complaint, the identity and addresses of the parties and witnesses, information relating to conciliation and inquiry, recommendations and action taken. However, it permits the dissemination of information regarding the justice secured to the victim, without revealing any particulars that could identify the Complainant or the witnesses. The Law also prescribes a monetary penalty of INR 5000 for breach of confidentiality, but these penalties are limited to those persons who are entrusted with the responsibility of handling complaints.
In practice, the Internal Committee (IC) often struggles to enforce this confidentiality. Despite the legal requirements, parties involved in PoSH cases often share details with colleagues or others within the organization, undermining the confidentiality mandate.
Despite these ongoing challenges, ICs can draw valuable lessons from the Judiciary. In 2021, the Bombay High Court, in the case of P vs. A & Ors., issued critical guidelines for handling PoSH cases. Recognizing the necessity of protecting the identities of the involved parties from any form of disclosure, intentional or accidental, the High Court established specific minimum guidelines.
While this blog does not delve into the entire order, it highlights a few relevant portions that Internal Committees can adopt and implement effectively.
Anonymity in Orders
The High Court issued directives to ensure the anonymization of the parties’ names in the proceedings. Orders are to be titled using only the first letters of the parties’ names, for example, “A vs. P.” Additionally, the body of the order should not contain the names of the parties, who should instead be referred to as “Plaintiff” and “Defendant.” No personally identifiable information, such as names, addresses, or telephone numbers, can be included in the order. Further, these orders are not to be uploaded publicly and must be pronounced in Chambers or in-camera.
Learnings for the Internal Committee
Internal Committees (ICs), much like courts, must exercise the utmost caution and intentionality in maintaining confidentiality in PoSH cases. The PoSH Law strictly prohibits revealing case details to anyone. A thorough reading of the Law clarifies that such details can only be disclosed to the Employer, preferably on a need-to-know basis. For practical purposes, such as implementing interim measures and assisting in the investigation, the Employer must be informed of the complaint’s initiation and the final report to be actioned.
Therefore, it is imperative that the IC and the Employer make every effort to protect the information related to the case, including the identities of the parties involved and the witnesses. Since the final report becomes part of the records, ICs should anonymize these reports once the recommendations have been implemented and the 90-day appeal period has expired.
Further, all efforts must be made to preserve the confidentiality of these records during storage. As most ICs today use cloud-based storage solutions, it is essential to ensure these platforms are highly secure and accessible only to the IC members.
Privacy in Hearings
Directives were issued mandating all hearings to be conducted in chambers or in-camera. Only the parties involved in the proceedings and their advocates are permitted to attend. No other court staff, except those providing secretarial assistance, i.e, the Court master and the stenographer, can be allowed to be present during the hearings.
Additionally, witnesses are to sign a statement of non-disclosure and confidentiality, in addition to taking an oath. Any breach of this agreement would amount to contempt of court.
Learnings for the Internal Committee
ICs can easily implement these privacy measures for hearings. If conducted in person, hearings should occur in a closed setting, away from the office premises during working hours. Alternatively, they can be scheduled after working hours, on weekends, or holidays when other employees are not present. No other individuals, including office assistants, should be allowed to enter the meeting room during such hearings.
ICs can also consider using online platforms, if convenient for the parties and witnesses involved, though this medium presents its own set of challenges. Further, witnesses summoned for the hearings must sign a non-disclosure agreement, with any breach subject to penalties.
A Word on Retention of Documents
Though the High Court order prohibits document retention in PoSH Act cases, ICs should retain records indefinitely when sexual harassment allegations are substantiated. This serves as a reference for potential future cases involving the same respondent.
Parting Thoughts
The guidelines issued by the Bombay High Court pertain specifically to judicial proceedings but underscore the importance of adhering to confidentiality and privacy protocols. While not binding on Internal Committees under the PoSH Law, they emphasize the need for a rigorous and sensitive approach to handling PoSH cases.