Confidentiality under the POSH Act: Sections 16 and 17

Fear of exposure keeps many women from complaining, and an accusation made public can damage a respondent before anything is proved. Section 16 keeps the complaint, the identities of those involved, the proceedings and the outcome away from the public and the media, overriding the Right to Information Act. Section 17 and Rule 12 penalise a breach. This note covers both sections and the Bombay High Court's guidelines for court proceedings.

1. What Section 16 Protects

Figure 1: Section 16

• Non obstante clause. Section 16 applies notwithstanding anything contained in the Right to Information Act, 2005.
• The bar. The protected matters shall not be published, communicated or made known to the public, press and media in any manner.
• Protected matters. The contents of the s.9 complaint; the identity and addresses of the aggrieved woman, respondent and witnesses; information on conciliation and inquiry proceedings; the committee's recommendations; and the action taken by the employer or District Officer.

2. The Proviso

Figure 2: What may be shared

Information may be disseminated regarding the justice secured to any victim of sexual harassment under the Act, without disclosing her name, address, identity or any other particulars calculated to lead to the identification of the aggrieved woman and the witnesses. This lets employers and authorities show that the law works without exposing anyone involved.

3. Confidentiality Is Not Secrecy from the Parties

• Public bar. Section 16 bars disclosure to the public, press and media, not to the parties themselves.
• Parties' access. The report is made available to the parties under s.13(1), and natural justice requires that the respondent know the complaint and evidence against him (Topic 12)
• Appeal. The record can go to the appellate authority under s.18 without breaching s.16.

4. Penalty for Breach

Figure 3: Section 17 and Rule 12

• Section 17. A person entrusted with the duty to handle or deal with the complaint, inquiry, recommendations or action who contravenes s.16 is liable to a penalty under his service rules or, where none exist, in the manner prescribed.
• Rule 12. Subject to s.17, the employer shall recover five thousand rupees as penalty from the person who contravenes s.16.
• Appeal. A person aggrieved by a s.17 penalty may appeal under s.18.

5. Confidentiality in Court: P v A (2021)

Figure 4: Bombay High Court guidelines

In P v A (2021), G.S. Patel J of the Bombay High Court issued guidelines for suits arising from the POSH Act. Parties are anonymised, hearings are held in chambers or in camera, judgments on the merits are not uploaded, and parties, advocates and witnesses may not disclose the contents of orders or filings to the media without permission. Breach may be treated as contempt.

6. Frequently Asked Questions

Can POSH inquiry records be obtained under the RTI Act?

Section 16 applies notwithstanding the RTI Act, so the contents of the complaint, the identities involved, the proceedings, the recommendations and the action taken cannot be made known to the public through an RTI request.

What is the penalty for breaching confidentiality under the POSH Act?

Under s.17, a penalty under the service rules of the person in breach or, where none apply, as prescribed. Rule 12 requires the employer to recover five thousand rupees from that person.

Who can be penalised under section 17?

A person entrusted with the duty to handle or deal with the complaint, inquiry, recommendations or action under the Act, such as committee members, the employer's officers or the District Officer's staff, who contravenes s.16.

Can an employer tell its staff about the outcome of a POSH case?

Only within the proviso to s.16. It may share information about the justice secured to a victim, but without disclosing the name, address or identity of the aggrieved woman, or any particulars that could identify her or the witnesses.

7. Related Topics

• Topic 12: Natural Justice in POSH Inquiries. What the respondent must be told.
• Topic 14: Inquiry Report and Action, Section 13. Report made available to the parties.
• Topic 18: Appeal, Section 18. Appeal against a s.17 penalty.