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Identity & Confidentiality Obligations re Workplace Sexual Harassment

    n.b.: This isn't an issue which I've thought through in any depth, and this post  comprises first impressions of the law. I'd be grateful for alternative interpretations of the law, or alerts in case there's something I've missed. It was written after I came across the suggestion (which I find galling) that the law intends to protect a proven abuser’s identity. 
    I'm assuming both the complainant & alleged abuser are adults for the purpose of this post. 

Confidentiality in the context of abuse isn’t a monolith. It includes confidentiality of the identity of the complainant, of the alleged or proven abuser, of the allegations complained of (or the acts committed), of the proceedings involved in determining if abuse occurred, of reconciliation attempts: successes and failures, of findings, and of particulars which could lead others to knowledge of any of these items. The list too does not stand on its own solely in the context of the law: it is reproduced many times over in the context of legal adjudicatory proceedings, in the context of contractual agreements, and in extra-legal contexts.

When it comes to circumstances which are entirely beyond the scope of the law, there is little in the way of explicit legal requirement that confidentiality be maintained although it may be possible to initiate legal proceedings against those who breach confidentiality. These proceedings could possibly be either in relation to defamation, which is both a civil wrong and a criminal offence in India, or in relation to a breach of privacy under tort law. The choice of proceedings would, of course, depend on how the person initiating proceedings was affected by the disclosure of information, and on the veracity of the information disclosed. Additionally, it would also depend on the relationships between the person complaining of disclosure, the discloser of information, and the person to whom information was disclosed. For example, it is possible that, if an allegation were made in good faith to a person who had lawful authority over the person in relation to whom a disclosure was made with respect to the subject matter of the disclosure, the person disclosing information would not be liable for criminal defamation on account of the eighth exception to the offence listed in Section 499 of the Indian Penal Code.

In the context of legal proceedings, there exist prohibitions that prevent the disclosure of information relating to rape and to child sexual abuse both in the 1860 Indian Penal Code, and in the 2012 Protection of Children from Sexual Offences Act. In essence, the former protects the identity of women who have been raped while the latter focusses on protecting the identity of children who have been subject to sexual abuse.

The issue of confidentiality when it comes to sexual harassment is not as clear as in the cases of rape and CSA. Section 354A of the Indian Penal Code defines the offence of sexual harassment and prescribes a punishment for it. However, the provision itself doesn’t contain any confidentiality clauses. There exists a separate mechanism to deal with workplace sexual harassment too, a subset of sexual harassment, in the 2013 Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act which does not exclude the possibility of the Indian Penal Code being invoked. This latter 2013 statute contains provisions which deal with confidentiality —
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.

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.

It isn't entirely clear how the confidentiality provisions of the 2013 statute against workplace sexual harassment interact with the Penal Code in cases where both statutes are involved. Focussing on the 2013 Act though: Section 16 contains several interesting features. Firstly, its intent seems to be not only to ensure that specified information is not published or made generally known, but also to ensure that information not otherwise legitimately publishable cannot be extracted through the 2005 Right to Information Act. Secondly, the provision is divided into a main body and a proviso both of which deal with confidentiality although the items they deal with are not identical. In relation to the revelation of identities, both the main body of Section 16 and its proviso prohibit the disclosure of the complainant’s identity and the identity of witnesses. However, in relation to the accused, it is only the main body which protects the identity of the accused person.

The proviso appears to carve out an exception to the main body of Section 16 by stating that ‘information may be disseminated regarding the justice secured to any victim of sexual harassment under this Act’ without disclosing either the names of the victim or witnesses, or any information which could lead to their identities being revealed. It may be possible to interpret Section 16 so as to have the main body apply before a finding is reached in relation to an allegation, and to have the proviso carve out a limited exception to the main body which allows information regarding ‘justice secured’ to be released after a finding is reached. The statute, however, does not define what would constitute such information.

About the legitimacy of revealing the identity of the accused person, there is a degree of vagueness – the exclusion of the accused person from the list of people whose identities must be protected in the proviso indicates that, where the proviso applies, the abuser’s identity need not be protected. However, there is nothing in Section 16 of the 2013 statute which explicitly allows an abuser’s identity to be revealed after a finding has been made either.

Perhaps one way to interpret the Section 16 is to understand it as demanding that an alleged abuser’s identity must be protected prior to a finding having been reached. However, once a finding is reached, it could be argued that the proviso implicitly distinguishes between cases where the alleged abuser has been found to be guilty, those in which he has not been found guilty although his conduct was not entirely beyond reproach, and those in which he has been completely cleared – the words ‘justice secured to any victim of sexual harassment’ imply that an allegation was not made without any basis and that the proceedings, in fact, involved a person who had been subjected to sexual harassment.

If there were no victim, the allegations false, and the accused completely cleared, presumably the accused person’s identity would continue to be protected, and the proviso to Section 16 raising the possibility of his identity being legitimately revealed would not apply at all. On the other hand, if the accused person were found to have committed sexual harassment, it appears that there exists an argument to be made to the effect that his identity would cease to be protected and that it could be disseminated as part of the information relating to ‘justice secured to any victim of sexual harassment’. Such a reading would protect men who were falsely accused of sexual harassment but not those who actually committed it.

There exists a third possibility too – that a man accused of sexual harassment may not have engaged in conduct which demanded that he be found to have committed sexual harassment but that he had nonetheless engaged in sexually inappropriate behaviour. Here, too, it may be possible to argue that his identity would not be protected following the finding. Such an interpretation of the law could be supported by the fact that the (arguably pre-finding) main body of Section 16 prohibits the disclosure of ‘any information relating to conciliation and inquiry proceedings’ although the (possibly post-finding) proviso does not explicitly demand that such information be kept confidential. That said, such an interpretation of the law is speculative at best.

The 2013 Act against workplace sexual harassment is far from clear about what it demands be kept confidential. And, in addition to the statute, there would almost certainly be policies and contractual arrangements binding those involved. The legality of such arrangements could possibly be challenged if they contained requirements which, in terms of the 1872 Contract Act, made them either void or voidable. However, it does not appear that confidentiality arrangements governing complaints and findings of workplace sexual harassment have been tested in relation to sexual harassment law specifically, much less contract law. And the result is that there currently appear to be several unanswered questions in this regard.

(This post is by Nandita Saikia and was first published at IN Content Law.)