Daily News Analysis

Prevention of Sexual Harassment Act

7th January, 2022 Society

Figure 3: No Copyright Infringement Intended

Context:

  • The Supreme Court argues that the Bombay High Court's controversial guidelines, which effectively prevent the media from reporting on cases of sexual harassment in the workplace, were a "death blow" to expression and freedom of expression.
  • S. Patel Guidelines: The guidelines were given by Judge G.S. The Patel, created by the High Court, is alleged to protect the identities of the parties in proceedings under the POSH law.

Guidelines:

  • No mention: Neither the name of the party nor the personally identifiable information should be mentioned anywhere in the court order.
  • Not Uploaded: Key resolutions and decisions are not uploaded. All orders and judgments will be delivered in private, i.e. in chamber or in camera.
  • Sealed: Entire record to be kept sealed and not be given to any person without court order. Fresh filings to be sealed also.
  • All hearings: to be held in chamber or in camera. No online facility. Appearance only. The supervisor must leave the courtroom.
  • Not published: The order will not be published unless there is a special court order. At best, only an anonymous version of the order will be released.
  • Prohibitions: Both parties and lawyers are prohibited from disclosing the content of the order or judgment to the media. Witnesses must sign a nondisclosure agreement.

 

Challenges

  • Total Ban: This includes a total ban on political parties and supporters from disclosing records, including orders and judgments, to the media. Orders in such cases will not be uploaded to the court's website and the media will not report decisions made under the law without court approval.
  • Article 19: This is the "bell of death" for freedom of expression and freedom of expression as set out in Article 19.
  • Right to Information: Injunctions related to people's right to true and accurate facts interfere with their right to information.
  • Blocking Survivors' Access to Court: HC's injunction can have a spillover effect, prevent survivors from going to court, and set a dangerous precedent for legal proceedings.
  • Inappropriate protection: Justifies improper protection against sex offenders who significantly violate the principles of public justice, natural justice, and the basic rights of survivors.
  • Swapnil Tripathi Judgment: The HC decision violates the principles of public jurisdiction set out in the Swapnil Tripathi Judgment.
  • Dismissal: Such an order cannot be enforced in an illegal and retaliatory dismissal proceeding.
  • To suppress female voices: It will "help powerful companies suppress female voices".

Way Forward

  • Well-informed citizens govern better. The right to freedom of expression can only be restricted if it interferes with the operation of the judiciary.
  • Public Discourse: In the issue of social justice and women's empowerment, public discourse plays an important role in shaping the legal rights women are entitled to.