Prohibition of Publication of Contents of Complaint & Inquiry Proceedings in Sexual Harassment Cases
Article
Prohibition of Publication of Contents of Complaint
& Inquiry Proceedings in Sexual
Harassment Cases
The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 prohibits publication of any information relating to conciliation and
inquiry proceedings, for maintaining secrecy about the persons involved,
including witnesses, in sexual harassment cases to protect them from social
stigma, humiliation and demoralization, and exposure in general.
The Act
requires that the identity and addresses of the aggrieved woman, respondent, recommendations
of the internal committee or the local committee and the action taken by the
employer or the District Officer under the provisions of this Act shall not be
published, communicated or made known to the public, press and media in any
manner.
It is a safeguard measure to check further aggravation of traumatic
& stigmatic experience of a victim of sexual harassment by unwarranted
disclosure of her identity. The courts
have been taking cognizance of such violations seriously, in sexual harassment and
rape cases.
Information may,
however, be disseminated regarding the justice secured to any victim of sexual
harassment under this Act without disclosing the name, address, identity or any
other particulars calculated to lead to the identification of the aggrieved
woman and witnesses. Section 16 of the Act reads as under:
“16.
Prohibition of publication or making known contents of complaint and inquiry
proceedings.—Notwithstanding anything contained in
the Right to Information Act, 2005 (22 of 2005), the contents of the complaint
made under section 9, the identity and addresses of the aggrieved woman,
respondent and witnesses, any information relating to conciliation and inquiry
proceedings, recommendations of the Internal Committee or the Local Committee,
as the case may be, and the action taken by the employer or the District
Officer under the provisions of this Act shall not be published, communicated
or made known to the public, press and media in any manner:
Provided that information may be disseminated regarding the justice
secured to any victim of sexual harassment under this Act without disclosing
the name, address, identity or any other particulars calculated to lead to the
identification of the aggrieved woman and witnesses.”
Penalty for
publication or making known contents of complaint and inquiry proceedings: Any person
entrusted with the duty to handle or deal with the complaint, inquiry or any
recommendations or action to be taken under the provisions of this Act,
contravenes the above provisions shall be liable for penalty in accordance with
the provisions of the service rules applicable to the said person. Where no
such service rules exist, penal action can be taken in such manner as may be
prescribed. As per Rule 12 if any person contravenes the
provisions of Section 16, the employer shall recover a sum of five thousand
rupees as penalty from such person. Section 17 and Rule 12 reads as under:
“Section 17. Penalty for publication or making known contents of
complaint and inquiry proceedings.— Where
any person entrusted with the duty to handle or deal with the complaint,
inquiry or any recommendations or action to be taken under the provisions of
this Act, contravenes the provisions of section 16, he shall be liable for
penalty in accordance with the provisions of the service rules applicable to
the said person or where no such service rules exist, in such manner as may be
prescribed.”
Rule 12. Penalty for contravention of provisions of section 16.- Subject to the provisions of section 17, if any person contravenes the provisions of section 16, the employer shall recover a sum of five thousand rupees as penalty from such person.”
Non cognizable offence: The offences committed under this Act are treated as non-cognizable. Offences and these cannot be tried in a court which may be inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class. Section 27 of the Act reads as under:
27.
Cognizance of offence by courts.—(1) No
court shall take cognizance of any offence punishable under this Act or any
rules made thereunder, save on a complaint made by the aggrieved woman or any
person authorised by the Internal Committee or Local Committee in this behalf.
(2)
No court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate
of the first class shall try any offence punishable under this Act.
(3) Every offence under this Act shall be non-cognizable.
Prohibition to publish names of
victims: Section 228A of the Indian Penal Code prohibits disclosure of identity of the victim
of certain offences. It reads as
under:
228A. Disclosure of identity of the
victim of certain offences etc.—
(1) Whoever prints or
publishes the name or any matter which may make known the identity of any
person against whom an offence under section 376, section 376A, section 376B,
section 376C or section 376D is alleged or found to have been committed
(hereafter in this section referred to as the victim) shall be punished with
imprisonment of either description for a term which may extend to two years and
shall also be liable to fine.
(2) Nothing in
sub-section (1) extends to any printing or publication of the name or any
matter which may make known the identity of the victim if such printing or
publication is—
(a) by or under the
order in writing of the officer-in-charge of the police station or the police
officer making the investigation into such offence acting in good faith for the
purposes of such investigation; or
(b) by, or with the
authorisation in writing of, the victim; or
(c) where the victim
is dead or minor or of unsound mind, by, or with the authorisation in writing
of, the next of kin of the victim:
Provided that no such authorisation
shall be given by the next of kin to anybody other than the chairman or the
secretary, by whatever name called, of any recognised welfare institution or
organisation.
Explanation.—For the purposes of
this sub-section, “recognised welfare institution or organisation” means a
social welfare institution or organisation recognised in this behalf by the
Central or State Government.
(3) Whoever prints or
publishes any matter in relation to any proceeding before a court with respect
to an offence referred to in sub-section (1) without the previous permission of
such Court shall be punished with imprisonment of either description for a term
which may extend to two years and shall also be liable to fine.
Explanation.—The printing or publication
of the judgment of any High Court or the Supreme Court does not amount to an
offence within the meaning of this section.
Supreme Court Judgment: The Supreme Court bench of Justices Madan B. Lokur and Deepak Gupta has observed in Muzzafar Nagar shelter home rape case that such incidents should not be sensationalized by the print and the electronic media. Such incidents of sexual assaults and abuse should be reported responsibly so as not to reveal the identity of the victim.
The court observed in another case of the eight-year-old girl who was raped and brutally murdered in Kathua of Jammu and Kashmir that even the dead have dignity. They cannot be “named or shamed.” It said that even in cases where the rape victims were alive and were either minors or of unsound mind, their identities should not be revealed as they have the right to privacy and they cannot live under such a “stigma” throughout their life.
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The Supreme Court reiterated on 11th December, 2018 that names and identities of victims of rape and sexual assault should not be disclosed or revealed. A bench headed by Justice Madan B Lokur directed the print and electronic media not to reveal the identity of victims of rape and sexual assault even in a remote manner. It said that FIRs in cases of rape and sexual assault, including those against minors, should not be put in public domain by police. The top court said it is unfortunate that rape victims are treated as untouchables in society. It said the intension of the lawmakers was that he victim of such offences should not be identifiable so that they do not face any hostile decimation or harassment in the future.
Only Special Courts under POSCO can permit the disclosure of the identity of a minor victim, that too, only if such divulgence were in the interest of the child.
High Court Judgement about transgender: The Division Bench of Justices Siddharth Mridul and Sangita Dhingra Sehgal, has allowed a transgender petitioner’s request to maintain anonymity, and directed that the cause title would read as “Anamika versus Union of India & Ors.”
CIC decisions: The Central Information Commission has delivered the following decisions in this regard:
Identity of personnel facing sexual harassment cannot be made public[1]
The appellant filed RTI request regarding her complaint of sexual
harassment filed on 23.04.2014 against Prof. Bhavnath Jha, Chief Scientist of
CSIR. She sought to know:
(i) current status of the Fact Finding Committee report of internal
complaints committee (ICC);
(ii) date on which FFC report was received;
(iii) designation of authority processing the FFC report;
(iv) findings of FFC on the charge of sexual harassment.
The CPIO stated that the inquiry on the matter was still pending, hence,
information sought could not be furnished. The CPIO quoted Section 16 of Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 and refused the information.
The Central
Information Commission has upheld CISF's decision that identity of security
force personnel facing sexual harassment and corruption charges cannot be made
public, saying the disclosure may cause unwarranted invasion of the privacy of
an individual….
It held that
the commission sees no reason to disagree with the decision of the respondent
that the name of the officer, with designation, against whom case has been
registered or is being investigated cannot be disclosed since disclosure of
such information may cause unwarranted invasion of the privacy of an individual
and no larger public interest would be served.
[1]Sushma
Rani Tirkey v. PIO, Council of Scientific & Industrial Research; Central
Information Commissioner CIC/CSIRD/A/
2016/ 306867
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