Corporate Governance
& Gender Diversity
1.1 Gender Diversity and a safe workplace for
women are essential attributes of Good Corporate Governance. The Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013, shortly known as the PoSH Act was enacted to provide protection to all
working women from organised and unorganised sectors alike, regardless of
hierarchy.
1.2 The Genesis: The Supreme Court,
while voicing its serious concerns on the sexual harassment faced by working
women, in the case of Vishaka & Ors. V. State of
Rajasthan & Ors. [1997(7) SCC 323] reaffirmed that sexual harassment at
workplace is a form of discrimination against women and provided a set of guidelines
(known as VISHAKA Guidelines), to address this issue, pending enactment of
suitable legislation.
2.0 The PoSH Act.
2.1 The PoSH Act (Act) mandates
provision of safe, secure and enabling environment to every woman, irrespective
of her age or employment status (other than domestic worker working at home),
free from all forms of sexual harassment and mandates that
(1) No woman shall be subjected to sexual
harassment at any workplace.
(2) The following
circumstances, among other circumstances, if it occurs, or is present in
relation to or connected with any act or behaviour of sexual harassment may
amount to sexual harassment:—
(i) Implied or explicit promise
of preferential treatment in her employment; or
(ii) Implied or explicit threat
of detrimental treatment in her employment; or
(iii) Implied or explicit
threat about her present or future employment status; or
(iv) Interference with her work or creating an
intimidating or offensive or hostile work
environment for her; or
(v) Humiliating treatment
likely to affect her health or safety.
2.2 Constitution of Internal Complaints
Committee
Every employer of a workplace has to
constitute a Committee known as the Internal Complaints Committee (IC). If the
Employer has multiple offices, administrative units or establishments, it shall
constitute ICs at such offices/administrative units. Employers/industry having
less than 10 employees are classified as unorganized sector.
Composition
·
Not less
than 2 members from amongst employees, preferably committed to the cause of
women or who have had experience in social work or have legal knowledge
·
1 member
from amongst NGO or associations committed to the cause of women or a person
familiar with the issues relating to sexual harassment
Provided that at least ½ of the total Members
so nominated shall be women
2.3 Constitution of Local Complaints Committee
The PoSH Act also provides for constitution of
a Local Committee at district level, by the appropriate Government, to receive
complaints of sexual harassment from establishments where the Internal
Committee has not been constituted due to having less than ten workers, or if
the complaint is against the employer himself.
2.4 Complaints – how to be made and the
Redressal mechanism,
The manner of addressing a complaint and the
Redressal mechanism, including an option for conciliation prior to initiation
of inquiry into the complaint is dealt with in the PoSH Act. “The
most pressing concern that I have found is the lack of training on legal
knowledge among the Internal Committee Members (IC) for conductiong of an
inquiry. Members of IC are usually found unable to conduct inquiries or
appreciate evidence or draft appropriate reports, or recommendations” Ms
Rekha Sharma – Chair Person – National Commission for Women. It is recommended
that the IC/LC Members train themselves and to go through the Handbook of
Guidelines, published by the Ministry of Women & Child Development (WCD), https://wcd.nic.in/). The Ministry also has empanelled certain Institutions
for imparting training programmes/workshops under the Act.
2.5 Inquiry into Complaint
Section
11 of the PoSH Act, inter alia, provides that the Internal Committee or the
Local Committee, as the case may be shall, where the respondent is an employee
proceed to make inquiry into the complaint, in accordance with the provisions
of the service rules applicable to the respondent (and where no such rules
exist, in such manner as may be prescribed. The following illustration would
guide the manner of inquiry into typical complaints:
(i) By a woman employee of the Principal
Employer/Contractor of the workplace against another employee employed by the
workplace or even against a walk in
customer or visitor to the workplace
(ii) By a woman be it an intern, customer, visitor or common service personnel
(e.g., house-keeping) against any of the
above categories of employees, employed or deployed at the workplace
In all the above situations the responsibility
being on the employer of the workplace, needless to emphasize that it has to
ensure compliance and it is their ICC that must investigate and provide
recourse/relief to the aggrieved women, including interim measures.
There could be a situation where the
respondent against whom the complaint is made is the employee of any other
contractor/agency or institution, but the complained harassment occurred at the
above work place, the ICC of that respondent who should initiate inquiry in the
manner prescribed in the PoSH Act. However, the employer of the workplace is
also equally responsible to ensure conduct of inquiry as by the ICC concerned
and resolution in due course.
2.6 Dissemination of Information &
Awareness
The PoSH Act, inter alia, requires the
Employer to.
(a) provide a safe working environment at the
workplace which shall include safety from the persons coming into contact at
the workplace
(b) display at any
conspicuous place in the workplace, the penal consequences of sexual
harassments; and the order constituting, the Internal Committee under
sub-section (1) of section 4;
(c) organise workshops and awareness
programmes at regular intervals for sensitising the employees with the
provisions of the Act and orientation programmes for the members of the
Internal Committee in the manner as may be prescribed;
(d) provide necessary facilities to the Internal
Committee or the Local Committee, as the case may be, for dealing with the
complaint and conducting an inquiry;
(e) assist in securing the attendance of respondent and
witnesses before the Internal Committee or the Local Committee, as the case may
be;
(f) make available such information to the
Internal Committee or the Local Committee, as the case be, as it may require
having regard to the complaint made under sub-section (1) of section
9;
(g) provide assistance to the woman if
she so chooses to file a complaint in relation to the offence under the Indian
Penal Code (45 of 1860) or any other law for the time being in force;
(h) cause to initiate action, under the
Indian Penal Code (45 of 1860) or any other law for the time being in force,
against the perpetrator, or if the aggrieved woman so desires, where the
perpetrator is not an employee, in the workplace at which the incident of
sexual harassment took place;
(i) treat sexual harassment as a
misconduct under the service rules and initiate action for such misconduct;
(j) monitor the timely submission of
reports by the Internal Committee.
2.7 Challenges posed in Implementation
While it may not be a challenge for an
organization to establish Committee, as
per norms and effective implementation for its office based employees, it poses
quite a challenge and riddle where the employees are field based, and has a complex
structure of workforce with contractual manpower, and work from home (WFH) , as
predominant at the current juncture.
The law applies to all establishments and
personnel irrespective of whose payroll such employees are and mandates, inter
alia, the responsibility to provide a
safe working environment at the workplace, which shall include safety from the
persons coming into contact at the workplace and provide assistance to the
woman, if she so chooses to file complaint in relation to the offence under the
Indian Penal Code, or any other law.
3.0 SEBI (Listing Obligations and Disclosure Requirements) Regulations
2015
The Ministry of WCD, as an additional step
towards making the workplaces safer for the women in the Private Sector and
enhanced transparency in disclosure, had advised SEBI to include certain
disclosures in the corporate governance norms for the listed companies. SEBI
after consideration, as amended its LODR regulations, to provide for following
disclosures by the listed companies
(1) No
of complaints filed during the financial year
(2) No
of complaints disposed off during the financial year
(3) No of complaints pending as on end of the
financial year
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4.0 Key Judgments for reference. It is
recommended that readers go through the relevant judgements to get the
holistic perspective.
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Conclusion:
“The meaning and
content of the fundamental rights guaranteed in the Constitution of India are
of sufficient amplitudes to encompass all facets of gender equality….”Late
Chief Justice J.S. Verma, Supreme Court of India, Vishaka v. State of Rajasthan
Sexual harassment constitutes a gross
violation of women's right to equality and dignity. It has its roots in patriarchy
and its attendant perception that men are superior to women and that some forms
of violence against women are acceptable. One of these is workplace sexual harassment,
which views various forms of such harassment, as harmless and trivial. Often,
it is excused as ‘natural’ male behaviour or ‘harmless flirtation’ which women
enjoy. Contrary to these perceptions, it causes serious harm and is also a
strong manifestation of sex discrimination at the workplace. Not only is it an
infringement of the fundamental rights of a woman, under Article 19 (1) (g) of
the Constitution of India “to practice any profession or to carry out any
occupation, trade or business”; it erodes equality and puts the dignity and the
physical and psychological well-being of workers at risk. This leads to poor
productivity and a negative impact on lives and livelihoods. To further
compound the matter, deep-rooted socio-cultural behavioural patterns, which
create a gender hierarchy, tend to place responsibility on the victim, thereby
increasing inequality in the workplace and in the society at large. It is
important as well to ensure that the emphasis is on prevention rather than
punitive action (Excerpts from the Handbook of Sexual Harassment at Workplace,
Ministry of WCD).
The basic principles of prevention including
mitigation of corporate risks and mitigation be best applied for implementation
of the PoSH Act by the industry. Many reputed organizations has either a Code
of Ethics Committee or a sub-committee of the Board of Directors. It would be
prudent if such Committees review the overall PoSH compliance including
specific cases reported and redressed as an agenda item and reports back overall
compliance to the Board at regular periodicity.
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