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Gender Mainstreaming of Indian Corporate Governance Laws

An ‘Add Women and Stir’ Approach?

Paavni Anand (paavni.anand@nujs.edu) is at the Luthra & Luthra Law Offices.

The gender mainstreaming of Indian corporate governance laws is analysed in relation to recent legislative reforms concerning corporate social responsibility mandates, the one woman director requirement, gender wage equality and maternity benefits.

The author would like to thank the anonymous reviewer for his/her comments that have helped to make this article more comprehensive.

Gender mainstreaming is a suitable framework to examine the potential, and actual contribution, of corporate governance laws with regard to gender equality. The most widely accepted definition of this framework has been devised by the Council of Europe Steering Committee for Equality between Women and Men (1998):

Gender mainstreaming is the (re)organisation, improvement, development and evaluation of policy processes, so that a gender equality perspective is incorporated in all policies at all levels at all stages, by the actors normally involved in policy making.

Theory of Gender Mainstreaming

Broadly, there are two approaches to gender mainstreaming, that is “agenda setting” and “integration” (Walby 2005). While the former includes structural changes in policy processes to meet gender equality objectives, the latter involves integration of a gender perspective to the pre-existing policy structure. Most feminists seek the former agenda setting approach to gender mainstreaming, to tackle inequalities from their very foundations (Walby 2005). However, even among these approaches, feminists have been divided on the route to gender mainstreaming. There is no unanimous consensus on whether “sameness,” that is, creating equalities within the gender regime, or “difference,” that is, targeted programmes to uplift women, or “transformation,” that is, introduction of new standards for both men and women, should pave the path to the gender mainstreaming of certain laws. The European Council (1998) recommends that all three strategies be used simultaneously, depending on the domain. Sylvia Walby (2005) agrees and argues that, in employment and business in particular, sameness and difference strategies are to be employed to incorporate gender mainstreaming into the capitalist structure.

In the context of corporate governance, based on Walby’s perception of gender mainstreaming, Grosser and Moon (2005) characterise gender mainstreaming as a combination of “technical processes” such as gender impact assessment, gender equality training and development of equality indicators, and “political processes” such as inclusion of women in decision-making and elimination of gender barriers to managerial positions.

Theories of Corporate Governance

Two theories of corporate governance take precedence in the corporate world today —the shareholder theory and the stakeholder theory of corporate governance.

In the 1970s, in the United States (US), most large corporations had dispersed shareholding, with investors who did not manage the firm and merely held equity ownership or shareholding. Thus, shareholders and managers were different entities such that there was a “separation of ownership and control” (Jensen and Meckling 1976). Corporations believed that a company is to be run in the interest of the owners—the shareholders—and that maximisation of pro­fits, to be handed to the shareholders as dividend, was of primary importance. Managers were hired as “agents” of the shareholders. However, due to the separation of ownership and control in a firm, there was a rift in the interest of shareholders vis-à-vis that of corporate managers. This rift was termed as the “agency problem,” which led to “agency costs” that were borne by the company in order to align the interests of the managers with the shareholders (Jensen and Meckling 1976). This is the shareholder theory of corporate governance.

However, by the late 1980s and 1990s, the stakeholder theory of corporate governance grew in importance. According to this theory, propounded by Donaldson and Preston (1995), companies must be run in the interests of stakeholders, that is, all those who affect the company and are affected by the company, since companies owe a wider responsibility to all its stakeholders, and not just the shareholders. The fundamental premise of the stakeholder theory is that managers should run the company based on the claims and expectations it has made by them to the stakeholders of the company, and must seek to resolve their own objectives with that of the stakeholders (Francoeur et al 2008). Today, in the US, the United Kingdom (UK) and India, a “shareholder primacy” model is accepted, where the duty of a company towards its stakeholders is accepted, with the shareholder being the primary stakeholder in whose interest companies should be run. Data suggests that 57% of women prefer to invest in companies with a good record on equal opportunities (Grosser and Moon 2005). Based on the shareholder primacy model, therefore, interests of female shareholders should be legitimised.

However, since stakeholders are characterised as all those who are affected by and who, in turn, affect the company, one of the primary criticisms of the stakeholder model is that the scope of this theory is too broad. On the other hand, the shareholder primacy model is criticised for not giving enough credence to the legitimate concerns of other stakeholders by placing shareholders in the primary position by default. Mitchell et al (1997) utilise the “stakeholder salience theory” to narrow the scope by identifying and characterising stakeholder salience on the basis of power, legitimacy and urgency to prioritise stakeholders.

The stakeholder salience approach to gender mainstreaming features women in the corporate governance structure in many ways. First, women as members of society and as social actors have the legitimacy and urgency to be taken into account by companies in accordance with the difference approach, through corporate social responsibility (CSR) targeted at gender equality and diversity. Second, women, as employees of the company, have the legitimacy to be uplifted and be treated equal to male employees as part of the sameness approach to gender mainstreaming. This can be done by mandating the induction of women directors on companies’ board of directors, and ensuring wage equality across genders. Lastly, as a part of the transformation approach, women have been given maternity benefits. This article addresses the efficacy of laws and policies mandating CSR, board inclusivity, wage equality and maternity benefits in recognising women as stakeholders in Indian corporate governance structures.

The CSR and Gender Diversity

The corporate governance structure in India was substantially revamped with the Companies Act, 2013, introducing changes in the board structure, managerial remuneration, mandatory independence of directors, and mandatory reporting systems, amongst others. In a bid to include the stakeholder value model of corporate governance in India, Section 135 of the act was introduced making CSR a compulsory activity. CSR recognises social externalities in relation to business acti­vity and engages stakeholders who affect and are affected by the company (Grosser and Moon 2005).

According to this provision, every company having a net worth of ₹500 crore or more is mandated to constitute a CSR committee, consisting of at least three directors, with at least one director being an independent person. The committee is mandated to constitute a CSR policy, and to utilise at least 2% of its average net profits towards the same. While the CSR committee and policy are mandatory, the 2% spending requirement is only subject to a “comply or explain model.” In other words, if companies do not spend the stipulated amount, they simply need to provide an explanation in a report prepared by the board of directors under Section 134 of the Companies Act, 2013.

CSR activities are not defined in the main body of the act, but an illustrative list has been drafted in Schedule VII which includes “promoting gender equality and empowering women.” This was amended by a notification dated 27 February 2014 to include:

Promoting gender equality, empowering women, setting up homes and hostels for women and orphans, setting up old age homes, day care centres and such other facilities for senior citizens and measures for reducing inequalities faced by socially and economically backward groups.

Most likely, as a result of the insertion of the new provision, CSR spending by the leading 100 companies of Bombay Stock Exchange (BSE 100) increased from ₹30 billion in 2013 to ₹52.4 billion in 2015 (IIAS 2016). However, out of the ₹52.4 billion spent on CSR, only ₹2 billion was spent on “reducing inequalities.” This includes gender equality, inequalities towards senior citizens, and inequalities faced by socially and educationally backward classes. It is interesting to note that inequalities faced by women, who constitute nearly half the Indian population, are grouped together with inequalities faced by other minorities. Further, out of the total expenditure on CSR, only 3.9% is devoted to “reducing inequalities.” Therefore, out of the aggregate average net profits of the BSE 100 companies, only 0.08% is devoted to reducing inequalities. To add to this, there is no specific data on proportional spending on CSR activities directed towards gender equality.

Most of the CSR spending was directed towards the Prime Minister’s National Relief Fund (PMNRF), hunger, poverty and education (IIAS 2016). The author contends that one of the reasons for the abysmally low expenditure on reducing inequalities is that there are no tax exemptions provided for such initiatives, and CSR expenditure, in general, cannot be used to avail tax benefits. On the other hand, tax exemptions are provided for contributions to the PMNRF, rural deve­lopment and skill development projects (Ministry of Corporate Affairs 2016b).

Further, the Companies Act, 2013 expli­citly states that activities undertaken only for the benefit of employees will not be regarded as CSR activities. This provision disregards the duties of the company towards its own employees, who are key stakeholders to a company. Even amongst those companies that have constituted policies in the benefit of their employees, there is a lack of emphasis on hard data, facts, and targets with regards to gender equality. Non-governmental organisations (NGOs) for women in the workplace, such as Opportunity Now in the UK and Catalyst in the US, have stated that there is a need for data on recruitment, retention, turnover, maternity return rates, promotion, and pay (Grosser and Moon 2005).

It is apparent that even though CSR laws were revamped in India in 2013, minimal efforts were taken to undertake gender mainstreaming of these laws. At the level of corporate governance, the lack of CSR on gender equality activities serves as evidence for the lack of initiative by these companies to inculcate an inclusive workplace. To investigate the reasons for this, we must examine who are at the helm of these companies in India, and who exercise major decision-making power. In India, majority of the directors in top companies are men, and participation of women in decision-making in companies is very low. It is for this reason that women become voiceless stakeholders, a marginalised section that needs to be protected.

Women Directors on Corporate Boards

In India, it is mandatory to include at least one woman on the board of directors of every listed company, every company with a share capital of at least ₹100 crore, and every company with a turnover of at least ₹300 crore, according to Section 149 of the Companies Act, 2013 and rule 3 of the Companies (Appointment and Qualification of Directors) Rules, 2014. This is an enabling provision, to promote gender diversity in Indian corporate boards.

The journey to this provision began in 2003, when it was first introduced in the Companies (Amendment) Bill, 2003. However, the provision was majorly ­opposed by many corporate groups, including the Federation of Indian Chambers of Commerce and Industry (FICCI), and did not see the light of day (Financial Express 2003). While the Companies (Amendment) Bill, 2009 sought to introduce several momentous changes, the provision concerning women directors was not included.

Meanwhile, in 2002, Norway took the lead in improving gender diversity in its company boards and enforced a 40% quota for women to be realised in all listed companies by 2005. Due to the failure of listed companies to do so, the 40% quota was mandated in 2006 by legislation (H J 2014). Many countries, including Spain in 2007, Finland in 2008, and Iceland in 2010, followed and enforced quotas for women on boards (Catalyst 2016).

In India, in 2010, Community Business, an Indian NGO, published a report that stated that only 5.3% of directors in India were women, out of which only 2.5% were executive directors. At around the same time, academic literature on how the presence of women on boards of directors improves board effectiveness was growing (Neilson and Huse 2010). The abysmally low participation of women in directorship of companies was noted by the Indian government, and in the next significant bill, the Companies Bill, 2011, which sought to repeal the Companies Act, 1956 and enforce a new act, the one woman director provision was included once again. In 2013, the Securities and Exchange Board of India (SEBI),

Diversity, in all its aspects, serves an important purpose for board effectiveness. It can widen perspectives while making decisions, avoid similarity of attitude and help companies better understand and connect with their stakeholders.

Therefore, it was clear that the Indian government had no intention to remove the one woman director provision. However, FICCI, which played a huge role in shaping the Companies Act, 2013, argued that directorship should be based on competency and not gender (Afsharipour 2015). Nevertheless, the provision was retained in the act.

By 2016, thousands of companies were fined for not having women directors on their board (PTI 2016). Later, in the Company Law Committee Report (2016a) that led to the Companies (Amendment) Bill, 2016, the committee noted their deliberations on penal provisions for non-compliance to the one woman director rule, but finally decided against it stating “no change in the rule position is necessary.”

But why have women on corporate boards at all? Is it a mere “add (women) and stir” approach? From the gender mainstreaming perspective, does adding women to the board really inculcate a gender equality perspective to corporate governance in companies in India and worldwide?

Utilising Gilligan’s care ethics approach, which posits that women are more inclined to use care reasoning, and maintain good relationships, Bart and McQueen (2013) state that women on boards are better than men at decision-making because of their complex moral reasoning abilities and consensus building approach to dispute resolution. Vinnicombe (2004) established that appointment of women on the board of directors improves market capitalisation and improves corporate governance. Joy et al (2007) found that companies with more women on the board of directors had higher returns on equity, on sales, and on invested capital. Jia and Zhang (2013) have shown that the presence of women is positively associated with CSR activity of the company, which is an indicator of good corporate governance.

In the shareholder value and shareholder primacy approaches, good corporate governance is measured by the price of shares in the market. Since many scholars have proven that an increase in gender diversity on boards positively has an impact on corporate governance, more women generally means more share value and thus, more profits. Therefore, women are essentially utilised to reinforce capitalist structures.

Interestingly, Walby (1989), in her work on capitalism and patriarchy, debunked the common belief that patriarchy stems from capitalism. She argued that patriarchy is distinct from capitalism and was, perhaps, reinforced by capitalism, but has its own distinct roots. If capitalism was removed, patriarchy would still remain. But introducing gender quotas in corporate boards has set an opposite effect in motion. Gender equality is now being used to reinforce capitalist structures. In other words, it is possible that the inclusion of women in corporate boards is simply due to new data that shows that more women translates into more profits.

In India, however, even the effectiveness of the capitalist agenda with respect to gender quotas is questionable. Female board representation increased from 7.3% in 2013 to 8.6% in 2014 (Dieleman et al 2016) to 11.2% in 2015 (Dawson et al 2015). Despite the apparent improvement in terms of figures, the difference in the Indian corporate governance scenario from that of the rest of the world should be acknowledged.

Umakanth Varottil (2009) has argued that the “transplantation” of laws from the US and UK to India is not ideal, since unlike its Western counterparts, most companies in India are family run, where the directors are the shareholders. Therefore, the primary agency problem of a difference in interests of shareholders and managers, the foundation of corporate governance norms in the US and UK, does not exist in India. Extending Varottil’s theory of the transplantation effect to the efficacy of gender quotas in Indian corporate boards, the prospect of women contributing to board effectiveness due to gender quotas in India looks bleak.

Since shareholders appoint directors, and directors hold majority of the shares in Indian companies, the gender quota provision is largely redundant since token directors selected through nepotism are highly likely to be appointed. Reliance Industries was amongst the first companies to hire a woman director after the Companies Act, 2013 came into effect, and inducted Nita Ambani, the wife of Mukesh Ambani as a director to meet the Section 149 requirement (PTI 2014). It is crucial to note that she was appointed as a non-executive director and therefore, was specifically excluded from any management responsibilities in the company. Many other corporations, such as Raymond Group and Godfrey Phillips, followed suit (Hashmi 2016).

A mere quota for women on boards is not enough. In the Community Business report of 2010, women directors who were interviewed stated that it was difficult to juggle their career and their families at the same time. It was noted that mid-career dropout rates were high. Women are first oppressed at home due to patriarchal structures, and then oppressed in the workplace due to the combination of patriarchal and capitalist structures (Walby 1989). For this reason, gender mainstreaming of corporate governance laws in India is of paramount importance. Until patriarchal structures are shifted, women will continue to be mere instruments to ­reinforce capitalist structures and suffer dual sites of oppression.

Wage Equality and Maternity Benefits

At this juncture, one should point out that India does have laws on gender wage equality under the Equal Remuneration Act (ERA), 1976 and also offers maternity benefits to women under the Maternity Benefit Act (MBA), 1961. But have these laws been effective in ensuring retention of female employees in Indian companies?

In India, Article 39 of the Constitution obliges the government to ensure that there is equal pay for equal work for both men and women. The ERA was enacted in 1976 to fulfil this objective. Section 4 of the act imposes a duty on all employers to ensure the same, while Section 5 prohibits employers from discrimination between men and women for the purpose of recruitment. How­ever, such laws do not take us very far in ensuring gender equality in the workplace, unless proper implementation is ensured. The ERA mandates employers to maintain registers in relation to workers employed by them that specifies the number of male and female workers employed along with their remuneration. However, unlike countries such as Australia,1 Sweden,2 and Canada,3 where it is mandatory to periodically disclose the manner in which equality of opportunity goals are met by the company and to formulate plans for equality in pay, in India, neither the Companies Act, 2013 nor the ERA, 1976 enlist any such requirements.

It is essential that companies not only complete these filing requirements, but also make them publicly available so there is a mechanism for transparency and monitoring to reduce wage disparity (Aravind 2017). Further, like in other countries that mandate companies to do so, Indian companies should make internal policies and plans to eliminate gender wage disparity. The overall gender wage gap in India is currently pegged at 25%, that is, for every ₹100 earned by men, women earn ₹75 for the same work (Fabo and Jimenez 2014). This report suggests that not only do lesser women hold supervisory positions than men but also, that women in higher positions experience higher inequality in pay. Further, the wage gap also increases with an increase in educational qualifications, and unmarried women earn more than divorced women (Varkkey and Korde 2013). On a global level, India ranks 103rd for wage equality for similar work and 135th for labour force participation between men and women out of 144 countries surveyed (World Economic Forum 2016). According to this report, India’s rank has surprisingly fallen with regards economic participation and opportunity since 2006. Clearly, neither the government, nor Indian companies through internal policies have taken adequate steps to bridge the gender wage gap.

As for maternity benefits, the MBA 1961, that has been amended in 2017, is one of the most progressive maternity benefit legislations in the world. The Maternity Benefits (Amendment) Bill, 2017 extends maternity leave from 12 weeks to 26 weeks for women with up to two children. The amendment also introduces maternity leave for women who adopt children below three months. For establishments with 50 or more employees, it is now mandatory to provide crèche facilities. Further, all women should be informed of these benefits at the time of appointment in writing and electronically. Employers may allow women to work from home depending on the nature of work. The MBA and its recent amendment are certainly a huge step forward in ensuring that women do not give up their career post delivery and are encouraged to take up leadership positions despite fulfilling their duties as a parent to their child.

Theoretically, the MBA could be and has been criticised for being regressive since it ignores the responsibility of fathers in child rearing. Countries such as the UK and Australia have introduced ­paternal leave as well (Preetha et al 2017). However, in a country such as India where patriarchal structures are so deeply entrenched, the efficacy of paternal leaves is questionable, since they would be considered emasculating instead of empowering by many. This amendment brings India a huge step forward by introducing 26 weeks leave, which is longer than most countries in the world, and as such should be celebrated.

One foreseeable setback would be, since the MBA places the financial burden to provide maternity leave and crèches on the employer, it may discourage establishments from employing women. While it may be too soon to comment on the same with hard data, there are certainly many Indian companies that have been taking the step forward to increase maternity benefits even before the amendment (India TV News 2015b). In fact, Citibank even provides childcare allowance to its female employees (India TV News 2015a). Tata Sons provides paid maternity leave for seven months, beyond the required threshold, and also provides 18 months of half pay and half working days support (Menon 2016). Flipkart also provides flexible working hours with full pay for four mothers apart from six months of maternity leave (Menon 2016).

Paving the Way for Gender Mainstreaming

In order to shift the patriarchal structures in corporate governance, more accountability and engagement at the managerial level is required. There is a need for greater attention to non-managerial stake­holder voices, specifically through shadow reporting and engaging with non-managerial employees and women’s NGOs (O’Dwyer 2003).

Varottil (2014) states that there is a need to approach gender diversity in spirit and not just in law. Women directors ought to be external directors, so that token appointments can be avoided. He states that women’s contribution should be valued in a company. Lastly, he recommends that the quota for women directors should be increased over a period of time. However, these suggestions are largely normative. Only when the larger patriarchal structures are questioned, can these laws become effective.

Biz Divas (now Beyond Diversity Foundation) and Khaitan & Co (an Indian law firm) in their 2014 report provide for more specific factors that need to be ­targeted, primarily talent sourcing and talent pool creation for women directors. This can be done through mentorship programmes, larger quota allocation, women employee retention mechanisms, government mandates and incentives, social sensitisation, and provision of networking opportunities for women (Unadkat and Mandloi 2014). Through these mechanisms, women can be brought to the forefront in the corporate world.

For instance, the Infosys Women Inclusive Network has initiated a host of programmes, such as Campus Connect to focus on women recruits to enhance the pool of talent, anti-sexual harassment initiative wherein all employees undergo sexual harassment training, and safety programme wherein self-defence programmes are provided to all employees. These programmes actively ensure that women are encouraged to participate in the workplace and are not left behind due to masculine patriarchal structures. Through such schemes that promote a diverse workforce, female employees are encouraged to organically take up positions of directorship on corporate boards, instead of filling token positions with no real power.

Indian corporate governance laws were majorly revamped in the Companies Act, 2013. Attempts were made to incorporate transparency and accountability towards shareholders and stakeholders. From the perspective of gender mainstreaming, two provisions were inserted—CSR was mandated for certain firms and inclusion of at least one woman on the board of directors was mandated for certain others. Even though these provisions have been viewed positively, and have resulted in positive figures on the face of it, an in-depth analysis of these provisions, from the standpoints of gender mainstreaming and stakeholder theory, has proven them to be insufficient.

With regards CSR, it is not mandatory for firms in India to specifically report on CSR towards women, particularly female employees, unlike many other countries that have mandated such disclosures. In fact, the Companies Act, 2013 has specifically excluded CSR towards employees from the definition of “corporate social activities.” With respect to women directors on Indian boards, it is unclear whether this inclusion is a mere “enabling provision,” or whether it fits within the larger scheme of a capitalist agenda to increase profits of companies. Even the capitalist agenda would be questionable in India, since the largest Indian companies have been appointing token directors to fill quotas for women.

The ERA, 1976 separately seeks to ensure equality in wages, whereas the MBA 1961 requires certain establishments to provide maternity benefits to their female employees. While the MBA has been lauded for its progressiveness, the effectiveness of ERA has been seriously brought to question with recent reports that prove that gender wage inequality is a major concern in India. While there is no country in the world that has closed the wage gap entirely, India ranks alarmingly low with regards wage disparity.

Instead of focusing on quotas for women, the government should consider making Indian companies an inclusive space for women through other means, such as by mandating targeted internal policies and training programmes for women in the workplace in all Indian companies. This would ensure that women organically rise to managerial positions in the workplace, rather than filling in token seats as non-executive directors with no real recognition and power.

Notes

1 The Workplace Gender Equality Act, 2012 in Australia mandates various employers to file yearly reports containing information related to various gender equality indicators. According to Section 3(1), Gender equality indicators mean the following:

(a) Gender composition of the workforce;

(b) Gender composition of governing bodies of relevant employers;

(c) Equal remuneration between women and men;

(d) Availability and utility of employment terms, conditions and practices relating to flexible working arrangements for employees and to working arrangements supporting employees with family or caring respon­sibilities;

(e) Consultation with employees on issues concerning gender equality in the workplace.

2 The Swedish Discrimination Act, 2009 incorporates active measures to reduce gender inequalities in the workplace.

3 The Employment Equity Act, 1995 in Canada mandates that various employers establish and maintain employment equity records in respect of the employer’s workforce, the employer’s employment equity plan and the implementation of employment equity by the employer.

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— (2005): “Gender Mainstreaming: Productive Tensions in Theory and Practice,” Social Politics: International Studies in Gender, State and Society, Vol 12, No 3, pp 321–43.

World Economic Forum (2016): The Global Gender Gap Report 2016, http://www3.weforum.org/docs/GGGR16/WEF_Global_Gender_Gap_Report_2016.pdf.

 

Updated On : 18th Jan, 2018

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