Kavya Shukla
Women often face a lot of challenges in their life, they have always been surpassed by society if they decide to do anything for themselves. They have faced safety issues, they were never financially stable, they always were dependent upon their parents or their husbands. But after several decades of struggle and oppression women came outside of their comfort zone and started working for themselves or their family or for whatsoever reason. This was a big change that society accepted but still, women were not safe at workplaces where they worked. The safety of women is a matter of grave concern and thus supreme court without any further ado came up with certain guidelines against the sexual harassment that was and still is being continually faced by women at the workplace.
Identity Under POSH Act
The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013 [1]which is also referred to as the “POSH Act” came into effect in 2013. Workplace harassment is an indirect form of gender discrimination only that violates the basic fundamental rights of women like the right to personal liberty, right to equality, right to life. As our Indian Constitution enshrines in itself the doctrine of equality and personal liberty under Articles 14, 15, and 21 of the Indian Constitution[2]. Therefore, if a woman is facing sexual harassment; every woman at their workplace has equality of opportunity, status, and personal liberty. Thus, a safe workplace for a woman is a women’s legal right and nobody can ever take this from them whether they are working under someone or above someone.
POSH Act came into existence for ensuring a safe working environment for women and also to protect and prevent them from sexual harassment. The landmark judgment that was given in Vishaka vs. the State of Rajasthan[3] pointed out certain guidelines that were needed to be followed. Before the Vishaka case[4], there was one case that led to India’s sexual harassment law that was the Bhanwari Devi case it paved way for the Vishaka Case.
In the Vishaka guidelines[5], the supreme court specifically mentioned the definition of ‘Sexual Harassment. They widened the meaning as well as the scope of sexual harassment in their guidelines.
The Supreme Court of India defined Sexual Harassment as an unwanted or unwelcomed sexual determination due to which it directly or by implication causes the following things:
- Physical contact and advances,
- A demand or request for sexual favours,
- Sexually coloured remarks,
- Showing pornography,
- Any other kind of unwelcomed conduct which can either be physical, verbal, or even non-verbal that is by actions.[6]
In the definition a term has been used that is anything that is unwelcomed or unwanted for a woman, this means that anything that a woman has never consented to or any act that was never intended by women to happen with her can be termed as sexual harassment. According to the above definition, any such conduct by any person can hamper the physical as well as the mental condition of the woman, and also violates her basic human rights.
Relevant Judgments
Recently in September 2021, the Bombay High Court gave certain guidelines for the protection of identities of the parties in POSH cases.[7] Some of these guidelines were that neither the name of the parties should be revealed nor their personal identities should be identifiable anywhere in any court order. Not only this they also said that orders and judgements on merits will not be uploaded anywhere and many more such guidelines were realised by the Bombay high court. All these guidelines meant that there was a blanket bar made by the court and this blanket bar meant that nobody should know the parties to the cases in any circumstances. Many people are in favour of these guidelines and many are against this too. Several activists including Abha Singh an advocate filed a petition in the Supreme Court challenging the guidelines that were issued by the Bombay High Court.[8]
The plea says that “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.”[9]
The[10] plea mentioned some points against the guidelines and one among them was that the guidelines that were given by the Bombay high court were a ‘death blow’ to the basic fundamental rights of the citizens of India[11]. In the plea, it was mentioned that the guidelines that were given by Bombay HC were [12]infringing a lot of rights of the victim, the accused, the media and the general public too. The guidelines were a clear death blow to the freedom of speech and expression that is one among the fundamental rights that a person have. Article 19(1)(a) of the Indian Constitution states that all citizens have the right to freedom of speech and expression.[13] Thus, infringement of the right can have a very detrimental and disastrous effect on society at large because fundamental rights can only be taken away from the citizens under exceptional circumstances only.
The petition also mentioned the importance of public disclosure that has not been considered by the Bombay high court. [14]Public disclosures are of great importance to the public and specifically to the general public. This judicial public disclosure helps in shaping the nature of legal entitlements that are delivered to women. All these disclosures serve as judicial precedents for not only the advocates but also for the general public. People can refer to them for their future cases and can even learn from the judgements that are given under them.
The court further mentioned that judgements in POSH cases will not be published for the public and if by any chance the judgement has to be published then it has to be a fully anonymised version. If any lawyer or advocate wants to refer to any POSH case then he or she has to obtain a court order then only then can access the judgement. [15]The guidelines are far too much than what is actually needed by courts to be done. Not disclosing the identities till a certain point can be reasonable but a blanket rule on not publishing the judgement at all is restricting the transparency in the judicial process.
The plea mentions that such judicial orders (Orders that are delivered under POSH Cases) can serve as a tool for misuse of the law. Men who are mostly in a powerful situation can use their will and power to misuse these laws and will continue to sexually harass women in all the situations. This can happen because the judgement will neither have the name of the accused and the victim, nor the judgement or decree will have their name or address written on them so in totality if we see there will be no disclosure about the identity of the accused and the victim to anyone outside the court. This analysis will have two aspects. The first one will be that if nobody will know the accused then there are very high chances that he might do the same sexual harassment thing with another woman in their office or at some other workplace because their identity has not been revealed and thus people are unaware of the reality, which can create a very chaotic situation for the victim. The second aspect can be that as the name of the victim has not been disclosed this can help the victim to not be judged by anyone around themselves and in the society. No one will be able to judge them by what has happened with them in their past, because people in India judge people on the basis of what has happened with them in their past. They will try to connect things very illogically and will in some or the other way become a hurdle in the accused life, and thus will not help her grow and come out of the dark side that she has faced in her past. Therefore, non-disclosure of the victim’s identity will help her in many ways. Thus, non-disclosure of identities of the victims can be a good step but non-disclosure of the identity of the accused can help in the continuation of sexual harassment against women at the workplace and thus will continue suppressing women, their voices and their stand for themselves in the society.
Also, the high court said that if anyone tries to publish or know the name or address or any other thing through which the parties can be identified then that act of the person or media come under ‘contempt of court’. Witnesses who will be present in the proceedings will have to sign a statement of non-disclosure and confidentiality and have to abide by the guidelines. These guidelines will strengthen the hands of those people who have big connections in the corporate world or those who think that they can easily dominate over women and thus will continue to sexually harass women without any fear in their minds.
Implementation of the Guidelines in a Post-Pandemic World
Now let’s see these guidelines from the post-pandemic situation. When we try to analyse these guidelines from the post-pandemic view, we can say that they are not at all suitable for the situation. As everything is going online including the justice system it is very important for the courts to maintain transparency among people regarding the judicial processes. So, seeing the guidelines given by the Bombay High Court in such a matter is really not understandable and also, they do not go parallel with the online judicial procedures. The guidelines mention that the victim and the accused should be physically present for the hearing and they do not allow online hearings for maintaining the confidentiality of the cases which is a bit off the track and do not go hand in hand with the online judicial procedure. It is stated in the guidelines that only physical appearances of the accused and the victim can take place. So, if the online hearings of the POSH Cases will not happen and also if the condition of the pandemic remains the same and thus do not favour the courts for in-court hearings then there will be an automatic delay in hearing of the cases. As everyone is moving towards online technology including our Indian judicial system, these guidelines do not follow this online regime. These guidelines will leave the victims to be thoughtful about whether they should file a case or not because they already know that there are a lot of cases pending in the court and unless the courts allow for physical hearings their case will not be open for physical hearing only. These guidelines will further extend and delay the judicial process. [16]Already, the Indian judiciary has so many cases pending and such guidelines will even worsen the situation.
Not only this Section 228A of the Indian Penal Code [17]gives a choice to the victims of the sexual assault cases to choose whether they want to disclose their identity in front of the public or not. But these guidelines even take away this right of the victim or the survivor and they are not left with any choice.
People don’t treat sexual harassment very seriously; it mostly goes unspoken and unnoticed by the person or the community where they are living. Mostly the ones who face sexual harassment do not raise their voice against it because they fear that if they will complain about this to anyone in the company there are chances that they will be fired from the job. Anyways people in India still think that we live in a man dominated society and after a lot of hurdles a woman gets a job and if by any chance the company have to choose among the men employee and the women employee there are high chances that they will go for the man employee only. So, if a woman is raising her against something that is absolutely wrong, we as people of India should encourage and motivate her. Therefore, these guidelines will help the victim in some or the other way but the same guidelines can also demotivate them too. So, the courts should come up with such a solution that helps Indian women to succeed in their life and break the stereotypes that are prepared for them by society. The problem is not with the laws or the way they are being interpreted but the actual problem is with the mentality of the people, the way they see and react to women is wrong. We have to change these mentally and make India a place that is open to all.
[1] The Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, https://legislative.gov.in/sites/default/files/A2013-14.pdf
[2] Constitution of India: Legislative Department: Ministry of law and justice: GoI. Legislative Department | Ministry of Law and Justice | GoI. (n.d.). Retrieved January 14, 2022, from https://legislative.gov.in/constitution-of-india
[3] Vishaka & other Vs. State of Rajasthan & others (AIR 1997 SC 3011)
[4] Vishaka & other Vs. State of Rajasthan & others (AIR 1997 SC 3011)
[5] Vishaka & other Vs. State of Rajasthan & others (AIR 1997 SC 3011)
[6] Arbaz, A. (n.d.). Sexual Harassment at Workplace. Sexual harassment at workplace. Retrieved January 15, 2022, from http://www.legalservicesindia.com/article/716/Sexual-Harassment-at-Workplace.html
[7] Thomas, A. (2022, January 6). Petition in Supreme Court against Bombay HC Norms on Sexual Harassment Cases. Retrieved January 23, 2022, from https://www.hindustantimes.com/india-news/petition-in-supreme-court-against-bombay-hc-norms-on-sexual-harassment-cases-101641410183866.html.
[8] Thomas, A. (2022, January 6). Petition in Supreme Court against Bombay HC Norms on Sexual Harassment Cases. Retrieved January 23, 2022, from https://www.hindustantimes.com/india-news/petition-in-supreme-court-against-bombay-hc-norms-on-sexual-harassment-cases-101641410183866.html
[9] Suryam, S. (2021, October 13). Bombay High Court guidelines protecting identities in POSH act cases “robs survivors of agency:” activists. Bar and Bench – Indian Legal news. Retrieved January 13, 2022, from https://www.barandbench.com/news/litigation/bombay-high-court-guidelines-protecting-identities-in-posh-act-cases-robs-survivors-of-agency-activists
[11] Thomas, A. (2022, January 6). Petition in Supreme Court against Bombay HC Norms on Sexual Harassment Cases. Retrieved January 23, 2022, from https://www.hindustantimes.com/india-news/petition-in-supreme-court-against-bombay-hc-norms-on-sexual-harassment-cases-101641410183866.html.
[13] ., V. (2022, January 5). ‘protects guilty, violates survivors rights’: Petition filed in SC against Bombay HC’s sexual harassment case norms. India Today. Retrieved January 28, 2022, from https://www.indiatoday.in/law/story/petition-supreme-court-bombay-high-court-norms-sexual-harassment-cases-1896526-2022-01-06
[14] Deshpande, S. (2022, January 5). Mumbai: Woman fighting court battle under Posh files Slp againstRT Bombay High Court gag order. Times of India. Retrieved January 25, 2022, from https://timesofindia.indiatimes.com/city/mumbai/mumbai-woman-fighting-court-battle-under-posh-files-slp-against-bombay-hc-gag-order/articleshow/88709885.cms
[15] ., V. (2021, September 27). Sexual harassment at workplace: Bombay HC issues guidelines to protect identities of parties involved. India Today. Retrieved January 25, 2022, from https://www.indiatoday.in/law/story/sexual-harassment-workplace-bombay-hc-guidelines-protect-identities-parties-1857995-2021-09-28
[16] Luthra, S. (2021, October 15). Bombay High Court Posh guidelines risk silencing victims of sexual harassment. The Indian Express. Retrieved January 18, 2022, from https://indianexpress.com/article/opinion/columns/bombay-hc-posh-guidelines-sexual-harassment-7570713/.
[17] Section 228 A, Indian Penal Code, Act No. 45 of 1860
Views are personal.
The author is a law student at OP Jindal Global University and is currently interning as a Content Writer with Desi Kaanoon.