Choosing the Right External Member for POSH Compliance: Key Judicial Precedents and Best Practices

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act) mandates the constitution of an Internal Complaints Committee (ICC) in every workplace with 10 or more employees. The ICC is responsible for investigating and addressing complaints of sexual harassment within the organisation, with the goal of creating a safe and respectful work environment. Section 4(2)(c) of the POSH Act requires that one member of the ICC must be an independent external party. Hence, selecting an external member with the right expertise is crucial, as they not only help the ICC adhere to compliance standards but also assist in conducting thorough, impartial investigations and facilitating effective grievance redressal.

This article explores the importance of selecting a qualified external member to serve on the ICC, delving into the specific responsibilities outlined in the POSH Act, relevant case law, and how the external member’s legal acumen can enhance the committee’s function and credibility. With an experienced and knowledgeable external member, the ICC can effectively handle complaints with transparency, protect confidentiality, and provide fair and accurate outcomes in cases of workplace harassment.

Legal Mandate for External Member in ICC

The POSH Act mandates the inclusion of an external member in the ICC, which is detailed in Section 4. This section specifies the structure of the ICC, which must include a minimum of four members: a Presiding Officer, two members from the organisation committed to women’s cause or with experience in social work or legal knowledge, and one external member. The external member is required to be familiar with issues related to sexual harassment or be associated with NGOs or associations committed to women’s issues.

The importance of the external member lies in their role as an unbiased and independent participant, ideally possessing an understanding of the law and specific workplace harassment concerns. They provide an essential outside perspective, which complements the knowledge and experience of internal ICC members, who are employees of the organisation.

In several landmark cases, Indian courts have underscored the importance of an independent ICC, pointing out the dangers of bias or lack of objectivity when ICC members lack independence or relevant expertise.

1. Independence of the External Member: In Punjab and Sind Bank and Ors. v. Durgesh Kuwar [AIR2020SC3040], the Supreme Court observed a fundamental defect in the ICC's constitution because the external member was not truly independent. The external member, a panel lawyer of the employer (bank), represented a conflict of interest as they appeared on behalf of the employer. The Supreme Court highlighted that the POSH Act’s purpose in including an external member is to ensure an independent voice that can provide impartial advice, guidance, and support to the ICC. This case reinforces that the external member must genuinely be a third party, unaffiliated with the employer, to maintain fairness.

   
   

2. Expertise in POSH and Gender Sensitivity: In Ruchika Kedia v. Internal Complaints, Goa Institute of Management [2020 SCC Online BOM 139], the Bombay High Court set aside an ICC report due to a lack of compliance with POSH requirements. The external member on the ICC was neither affiliated with an NGO nor possessed relevant knowledge of women’s issues or sexual harassment. The court emphasised the need for ICC members to have training or orientation, which equips them to handle complaints with sensitivity. It stressed that an external member should have experience or familiarity with harassment-related issues to guide ICC members, who are often internal employees without specialised legal knowledge.

   
   

3. Criteria for ICC Members’ Independence: The High Court of Delhi in Rashi v. Union of India And Another [MANU/DE/2178/2020] further defined the requirements for the constitution of an ICC. In this case, the ICC included members from the same department as the respondent, leading to concerns about objectivity and bias. The court mandated reconstitution of the ICC, underscoring that members should be free from bias, conflicts of interest, and hierarchical or professional connections to either party. An independent external member is essential to provide guidance and uphold impartiality, ensuring that the ICC functions fairly and objectively.

The Critical Role of a Knowledgeable External Member

An external member well-versed in the POSH Act and its procedures enhances the ICC's ability to function effectively. Such expertise aids the ICC in key areas such as:

• Confidentiality and Sensitive Handling: An informed external member ensures sensitive handling of cases, strictly protecting confidentiality to prevent undue exposure of the complainant or the accused.

  
  

• Evidence Gathering and Impartial Investigations: A legal expert can guide the ICC on gathering, documenting, and analysing evidence with procedural rigor and impartiality.

  
  

• Fair Report Drafting and Recommendations: The external member’s knowledge of law ensures that reports are legally sound and objective, avoiding ambiguities and reinforcing the credibility of the ICC’s findings.

  
  

• Maintaining Judicial Standards: As case law indicates, an independent and competent ICC is essential for compliance with the POSH Act. An experienced external member brings judicial standards into practice, helping the ICC avoid procedural errors that could otherwise lead to legal challenges.

Conclusion

The choice of an external member for the ICC is a pivotal decision, impacting the committee’s effectiveness and impartiality. An independent, qualified external member ensures that the ICC fulfils its mandate under the POSH Act to conduct fair, thorough, and legally compliant investigations. Case law clearly indicates that any association of the external member with the employer undermines the ICC’s independence and credibility. Thus, organisations must carefully select an external member who is truly independent, legally knowledgeable, and sensitive to the complexities of harassment cases to support the ICC’s goal of fostering a respectful, safe workplace environment.