Mumbai News

‘Guidelines to protect identities in POSH cases are case specific’: Bombay HC – The Indian Express

Nearly six months since it passed guidelines or working protocols for courts, their registries and the media for conducting and covering proceedings pertaining to sexual harassment of women at workplace, the Bombay High Court Thursday clarified that the same were case specific.

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The court said that it was an “incorrect impression” that the said directions passed on September 24 last year were general directions governing all matters under the Sexual Harassment of Women at the Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) and Rules.

The court, last year, had held that it is imperative to protect the identities of the parties in such hearings, including the victim, the accused or the witnesses, and had said that hearings be conducted or verdicts be delivered inside chambers or in-camera not in open court.

A single-judge bench of Justice Gautam S Patel Thursday passed a clarificatory order after hearing an interim application in a suit filed by ‘The Forum Against Oppression of Women’, represented by senior advocate Indira Jaising, along with advocates Vijay Hiremath and Swaraj Jadhav.

The interim plea contended that the said guidelines were not only “against the letter and spirit” of the POSH Act, but are also “against the concept of open courts”, which is an essential aspect of judicial determinations world over. Jaising added that the September 24 order was being cited by accused men in other cases before the courts.

Justice Patel acknowledged that “it is true that it remained to be specifically noted in that order of September 24, 2021 that the order was indeed not only restricted to this particular suit but was by consent of both sides and was based on signed written submissions presented by the advocate for the Plaintiff and Defendants”.

“The interim application proceeds on the basis that the directions on that day in the suit were general directions governing all matters under the POSH Act and Rules. That is an incorrect impression,” Justice Patel noted.

“The directions had to be confined to this particular case. They could not possibly have had any larger or wider applicability for the simple reason that any such Rules of general applicability would have to be approved by the Full Court. A delegation of the authority of the Full Court would have to be in a manner known to law,” Justice Patel, who had passed the September 24 order, clarified.

The judge went on to add, “A single-judge hearing a particular matter within his rostered assignment has no authority or jurisdiction to issue any rules binding the entire court. It is only the Full Court or the Chief Justice which or who can do that. Very possibly, such Rules might even have been required to be notified in the official gazette. None of this was in contemplation at any time on September 24, 2021.”

The plaintiff represented by advocate Abha Singh in a suit had approached the Supreme Court against the September 24 order claiming that it will help powerful men to suppress women’s voices.

However, Justice Patel noted that the said order was by consent and was only specific to the matter at hand. He added that on October 11, 2021, he had clarified that the September 24 “consent” order, containing “agreed protocols” governed only further proceedings between parties before him in the specific case.

Jaising agreed that such a clarification “sufficiently addressed her clients’ concerns” in the interim application and therefore did not press for the prayers in the plea further.

Justice Patel directed the present clarification be uploaded even though the entire suit file for the matter was sealed. The names of the parties were kept anonymous in the order and the court directed that the case papers, which were unsealed for the present order, will be sealed again.

Source: https://indianexpress.com/article/cities/mumbai/guidelines-protect-identities-posh-cases-specific-bombay-hc-7825980/