Since the establishment of the Sexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Act, 2013, there has been a noticeable increase in complaints related to the Prevention of Sexual Harassment (POSH) at workplaces. In many cases, appeals have been made to question the fairness of decisions or recommendations made by the Internal Committee (IC), suggesting bias or conflicts of interest in the final rulings.
Understanding Bias & Conflict of Interest
The POSH Act mandates that both parties involved are entitled to equal opportunity to be heard, adhering to principles of Natural Justice. However, uncertainties often exist regarding how to conduct these inquiries due to a lack of knowledge and training. Employers are not only responsible for forming an IC but also for providing them with annual capacity-building workshops. These workshops cover essential topics such as receiving complaints, conducting examinations and cross-examinations of parties and witnesses, and facilitating meetings fairly, without personal biases influencing the inquiry.
It is crucial that IC proceedings remain free from bias. In accordance with the POSH Act, organizations establish Internal Committees to mitigate conflicts of interest and ensure fair outcomes in POSH proceedings. The IC typically comprises at least four members, including a chairperson, members from the organization, and an external member. Given that three out of the four mandated IC members come from the organization, they need POSH Training to fully grasp the complexities of conducting a fair inquiry, particularly when colleagues and coworkers are involved, which may introduce bias due to interpersonal relationships.
The consequences of bias, or unconscious bias, can be detrimental to the outcome of a POSH-related inquiry. It not only leads to unfair treatment of the aggrieved party or the respondent but also carries the potential to create legal liabilities. Cognitive biases can affect decision-making by impairing rational judgment, especially in the workplace where creating an inclusive environment free from bias can be challenging.
Examples of IC bias could be seen in statements such as:
- “Why didn’t you come to us sooner, if your complaint is genuine?”
- “As your manager, they have the right to be part of the IC.”
- “As a complainant, you should be feeling scared.”
To address issues associated with bias and impartiality, IC members need adequate training to handle biases effectively and recuse themselves from complaints where they may have a personal interest, conflict of interest, or bias towards either party.
A Look at Case Laws
Fear of Bias Two significant judgments regarding IC bias are worth mentioning. In the case of M. Rajendran v. M. Daisyrani and Ors., the Madras High Court examined whether the IC itself should be reconstituted to ensure impartial and fair proceedings. In this instance, there was a reasonable apprehension of bias as most IC members were subordinates of the individual against whom the complaint was filed.
The Supreme Court, in Punjab Sind Bank & Ors. v. Mrs. Durgesh Kuwar, highlighted a fundamental defect in the IC constitution. It referred to the POSH Act, stating that irregularities in constituting the IC arose due to the lack of an independent member to preside over the matter, potentially leading to institutional bias.
Establishing Bias In another case, Somaya Gupta v. Jawaharlal Nehru University and Ors., the Delhi High Court ruled that the likelihood of bias must be established by the petitioner and mere apprehension was insufficient to challenge the constitution of the IC. Here, the petitioner challenged the inquiry on the grounds that the IC’s presiding officer was a witness to the incident for which the complaint was filed and should, therefore, be disqualified from presiding over the inquiry due to a conflict of interest. However, the court held that reconstitution of the entire IC was unnecessary as the other members did not have a personal interest in the matter.
Overcoming Bias Through Training
Every organization has a POSH Policy or internal guidance note to help IC members understand how to avoid situations that could lead to conflicts of interest. Biases may arise at any stage of the complaint process, from before the inquiry begins to during the investigation or even afterward. To handle such situations effectively, IC members should be well-trained.
IC training conducted by third parties, like Lawgical Associates, helps IC members understand the meaning of bias, types of bias, possible triggers, and consequences. At Lawgical Associates, we believe that IC member training isn’t a one-time event but a continuous process. We use case studies and live illustrations in an interactive and engaging manner to help IC members take necessary steps to be impartial and bias-free in their judgments.
