India has in recent years seen an upsurge in reporting of sexual harassment complaints. Statutory rights and protection accorded to women under the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and allied rules (“SH Act”), coupled with social impact deliberations such as the #MeToo and Times’ Up movements have worked towards creating a proactive awareness, ultimately resulting in an increased reporting of sexual harassment incidences.
While a large number of sexual harassment complaints are being appropriately addressed and remedied internally, there is still a large pool of matters which are being appealed against the recommendations made by Internal Committees (“IC” or “ICs”). One often encountered ground of challenge is the manner in which the proceedings are conducted by the ICs. This challenge covers several aspects, including: (i) composition of IC; (ii) practices and procedures followed during inquiry proceedings; (iii) case sensitivity involved; (iv) extent of adherence to principles of natural justice; (v) confidentiality; (vi) quantum and nature of sanctions, etc.
Conflict of interest and the existence of ‘bias’ not only during the conduct of an inquiry proceeding, but even at the stage of constitution of the IC has been challenged. The SH Act, with accompanying jurisprudence on the subject, clearly states that principles of natural justice should be followed during IC proceedings and that one cannot be made a judge in their own case, as this may lead to a bias or conflict of interest. While the statute clearly provides that both parties to a proceeding should be provided an equal opportunity to present their case, what it does not provide is the mechanism to handle matters where a potential element of bias arises.
What is ‘bias’?
The SH Act does not define the term ‘bias’. In its general interpretation, bias means a particular tendency or inclination, especially one that prevents unprejudiced consideration of a question. In other words, bias means a state of mind that could possibly impair a decision-making process, often resulting in partiality or, consciously or subconsciously, being oblivious to the facts at hand.
Reasonable apprehension and real likelihood of bias
Various Indian courts have invalidated the constitution of an IC on grounds of perceived bias. For example, in the case of Dr. M. Rajendran v. M. Daisyrani and Ors. [(2018) 3 MLJ 84], the Madras High Court held that where there is a reasonable apprehension of bias, the inquiry may be vitiated. The Court directed the petitioner to appoint an independent committee so as to conduct an impartial, fair and free enquiry into the allegations made.
Further, in the case of Somaya Gupta v. Jawaharlal Nehru University and Ors. [(2018) 159 FLR 390], the petitioner challenged the constitution of the IC on grounds of bias amongst IC members. The petitioner claimed that the IC was biased as it was constituted by the executive committee of Jawaharlal Nehru University which included individuals against whom the petitioner filed a complaint of sexual harassment. Here, the IC’s presiding officer was a witness to the incident and hence, was disqualified from acting as a member of the IC. The Delhi High Court ruled that mere apprehension of bias is insufficient grounds to allege the existence of bias and the petitioner must establish the existence of bias. On the grounds that there was no material on record that would even remotely lead to any suspicion that the members of the IC have any personal interest that would conflict with their obligation to conduct an inquiry fairly and make a fair recommendation, the Court held that there was no requirement for re-constitution of the IC.
In the case of M.P. Special Police Establishment v. State of M.P. [Appeal (civil) 7256-57 of 2004], the Constitution Bench of the Supreme Court was concerned with an allegation of bias in the context of sanctions to prosecute ministers. Relying on its earlier decision in the case of Kumaon Mandal Vikas Nigam Ltd. v. Girja Shankar Pant & Ors. [(2000) 1 SCC 182], the Supreme Court observed that the question in such cases would not be whether the IC members would be biased; the question is whether there is reasonable ground for believing the existence of apparent bias. Only actual bias would lead to automatic disqualification, particularly where the decision-maker is shown to have an interest in the outcome of the case. The principle of real likelihood of bias is tilted between real danger of bias and suspicion of bias.
Unconscious bias
While ‘bias’ in procedural aspects can be called out, it is difficult to isolate and identify unconscious bias, where an individual is innately prompted to decide in favour of one side. Such behavioral bias, which could be unconscious in certain circumstances, emerges from socio-cultural influences, opinions, stereotypes and induced perceptions. Very often, the media in its various forms efficiently serves as an agent of inducing and, over a period of time, crystallizing unconscious bias. Unconscious bias is not easy to identify in individuals at the time of constitution of an IC, but some of these attributes do tend to surface very clearly during the course of inquiry proceedings. This could be detrimental to the outcome of inquiry proceedings and consequently, unfair on both the complainant and the respondent.
Not just the IC, but even the judiciary should adopt a cautious approach while deliberating matters relating to sexual harassment, and should desist from expressing any stereotypical opinions on women. In establishing fairness of proceedings, it is important for the judiciary to recuse themselves from pre-conceived notions and unconscious bias. In the case of Aparna Bhat v. The State Of Madhya Pradesh [LL 2021 SC 168], the Supreme Court deliberated that “the challenges Indian women face are formidable: they include a misogynistic society with entrenched cultural values and beliefs, bias (often sub-conscious) about the stereotypical role of women, social and political structures that are heavily male-centric. Therefore, reinforcement of this stereotype, in court utterances or orders, through considerations which are extraneous to the case, would impact fairness”. The Supreme Court held that the use of patriarchal and stereotypical reasoning or language which diminishes sexual crimes and tends to trivialize the victims, should be avoided under all circumstances.
Way forward for employers
What can be broadly gleaned from the above case laws is that policies governing the appointment of IC members should clearly provide for conflict of interest provisions and a declaration of no conflict may be procured from each member of the IC who will be part of the inquiry proceedings. As bias can arise even prior to commencement of the inquiry process, or during the investigation based on pieces of evidence produced or witness statements, IC members should be trained to deal with situations where existence of bias or conflict may not be known upfront but may arise subsequently during investigations.
An allegation of bias or conflict received should be immediately and thoroughly addressed in order to avoid a miscarriage of justice and an added burden on employers, given the risk of legal exposure. Further, any such allegation of bias or conflict of interest should be immediately disclosed so that concerned parties can be excused from the inquiry process. Unless such a recusal is made, the only recourse an aggrieved woman is likely to have would be to challenge the findings of the IC.
Principal Associate,
JSA Advocates & Solicitors
Despite the prescribed requirements for constitution of IC under the SH Act, several organizations are non-compliant with this requirement to date. Employers should be cautious in implementing anti-harassment policies in line with the requirements of the SH Act, including compliance with constitution of the IC. Training and workshops conducted for IC members under the SH Act should also focus on creating awareness amongst IC members of the possible existence of a conflict of interest and how to deal with such situations. Citing examples through case studies and real-life situations may also be considered. Anti-harassment policies should lay down the process in which IC may be re-constituted even after the commencement of inquiry proceedings if a complainant raises concerns about a reasonable apprehension or apparent indication of bias or conflict of interest amongst IC members. As a fallback option, employers should consider having a larger pool of members in their IC in order to avoid re-constituting the committee in case one or more members are conflicted about any matter.
