Justice G. S. Patel of Bombay High Court issues guidelines to protect the anonymity of the parties to a POSH investigation: No Media Reporting, No Public Disclosure Without Approval of the Court

Justice G. S. Patel of the Bombay High Court in a civil suit represented by Ms Abha Singh  and Advocates Dr Birendra Saraf and Mr Lancy D’souza for the plaintiff and defendants respectively held that it is imperative to protect the identities of the parties to a POSH investigation under the Prevention of Sexual Harassment of Women at the Workplace Act, 2013 (POSH Act) from any accidental disclosure into the public, wherein the judge laid down certain preliminary guidelines and protocol for media reporting, hearings and case file management of POSH cases to maintain absolute anonymity of the parties to the case. The guidelines are as follows:

Judicial Orders:

  • The names of the parties shall not be revealed, rather the orders will read as “A v B”, “P v D”, etcetera.
  • The parties in the text of the order shall be strictly referred to as Plaintiff and Defendant and not by their names; additionally, there must be no mention of any Personal Identifiable Information (ex: email-ids, telephone numbers, etcetera).
  • The names of the witnesses shall not be mentioned while their addresses shall not be noted.
  • All orders and judgements shall be delivered in private, either in chambers or in-camera.
  • Orders containing the merits of the case are barred from being uploaded while the orders devoid of any such merits is permitted to be uploaded.

Filing Protocols:

  • If an affidavit, application or pleading is being filed, then no Personal Identifiable Information of any of the parties or witnesses shall be retained by the Registry, including but not limited to email-id, phone number, Aadhaar Card number, etcetera.
  • The Registry may require the production of an identity document to ascertain and verify the identity of an individual, wherein the copy of the said document cannot be retained on file.
  • Parties must be kept anonymous at the head of orders and affidavits.

Access:

  • The Registry is barred from letting anyone other than the Advocate-On-Record with a current and valid vakalatnamato either inspect or take copies of any filing/ order.
  • The entire record pertaining to a case is to be kept sealed without the scope of giving it to anyone without the express order of the court; this includes any fresh filings.
  • The said record cannot be digitized by any third party without an order of the court, wherein the court shall provide directions for the supervised digitization of the record.
  • The depositions of witnesses are barred from being uploaded under any circumstances.

Hearings:

  • All hearings of a POSH case are to be held either in chambers or in-camera, wherein the hearings must take place in physical attendance without any scope for online/ hybrid facility for hearings.
  • Only the advocates and litigants are allowed to attend the said hearings, wherein the support staff of the court (ex: clerks, peons, etcetera) must leave the place at the time of the hearings; however, court master/ associate, sheristedar, stenographer, individual providing secretarial assistance to the court may be present during the hearings.

Directions to Obtain Certified Copy:

  • The Certified Copy Department will not raise any objection owing to the difference in the short or long title of the case matter and the order in question.
  • Parties shall function using an ordinary, authenticated, or digitally signed copy of every order to every extent possible.

Public Access:

  • Unless a specific order is obtained from the court, no order can be released into the public domain.
  • The release of any order into the public domain is done if and only if the fully anonymised version of the order/ judgement is released into the said public domain for publication.

Breach:

  • The publication of any Personal Identifiable Information, including the names and address of the parties is absolutely barred.
  • The aforementioned rule shall apply where any information about the parties has been obtained by using the contents of a judgement/ order to discover information already in the public domain.
  • The provisions of this guideline must be adhered to by all persons, including the media, wherein breach of any conditions of anonymity within this guideline shall be construed as contempt of court.

Forbidden Disclosure by Media:

  • All parties and their advocates, including the witnesses, are forbidden from disclosing the contents of any order/ judgement/ filing to any media entity, including social media, wherein the publication of any such material in any mode or fashion under any circumstances is forbidden without the special leave of the court.
  • Witnesses of the case must sign a statement of non-disclosure and confidentiality.
  • Breach of any provision of this guideline shall attract contempt of court.

Prohibition of Recording:

  • Any form of recording of any part of the proceedings is strictly forbidden.
  • Any attempt to record or transcribe any part of the proceedings shall be construed as contempt to court.

Industrial/ Labour Court Proceedings:

  • The plaintiff has a pending appeal before the Industrial/ Labour Court, wherein the said court will strictly adopt and follow the said guidelines without any deviations from these guidelines under any circumstances.
  • A copy of this order will be sent to the president of the aforementioned court for its immediate attention and action, wherein both sides of a case will ensure that a copy of this order is placed before the president of that court and the presiding judge.

It is worth noting that Justice G. S. Patel provided that the aforementioned guidelines are subject to revision and modifications as and when required in the future.

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