Who is an external member for PoSH?

Workplace sexual harassment results from power dynamics between the accused and the victim. Power dynamics exist at every level of the organization. The same applies to the PoSH Committee constituted under the PoSH Act, 2013. This committee is the Internal Complaints Committee (ICC) or the Internal Committee (IC). Power dynamics can often creep into case investigations by the ICC. Thus, it requires the nomination of an external member for PoSH.

The external member acts as a neutral third party that keeps the bias of the ICC in check. Both the PoSH Act and Rules lay down certain guidelines for the nomination of an external member. Yet, the external member’s duties, roles, and responsibilities remain unclear. However, the judiciary has determined the role of the external member for PoSH.

Provision for an external member for PoSH

As per Section 4 of the PoSH Act:

• A senior female employee should head the PoSH Committee,
• At least half of the PoSH Committee members should be women, and
• One member should be from an NGO or an association that works for women’s empowerment. They can also be a person who is familiar with issues related to sexual harassment.

As per the PoSH Rules, a “person familiar with issues related to sexual harassment” is an expert in such issues. These include:

• A social worker with at least 5 years of experience in social work. Such social work should create favorable conditions for women’s empowerment. It should address workplace sexual harassment.
• A person who is familiar with labor, service, civil, or criminal law.

However, this Rule is applicable only to Section 7 of the PoSH Act, 2013, which talks about the constitution of the Local Committee in every district.

The road behind an external member for PoSH

Vishakha Guidelines

From Vishakha Guidelines, it is clear that discrimination can cause workplace sexual harassment. Stereotypes about working women are also a major cause. The Vishakha Guidelines shifted the focus of workplace sexual harassment from a crime-based model to a preventive model. The aim of the Vishakha Guidelines is to change employees’ mindsets and attitudes against women.

Need for an external member for PoSH

The PoSH Committee is a mandatory complaints committee that every employer needs to create in their workplace. An external member ensures an informed process and a balanced result. An external member serves as a knowledgeable, neutral, and unbiased party to not let the management influence the decisions of the PoSH Committee. As stated earlier, while the Act or the Rules do not dive deeper into the role of the external member, the Supreme Court and other courts in India have commented on their role.

Role of the external member in the Internal Complaints Committee

Various courts in India have interpreted the role of the external member in the Internal Complaints Committee:

• In Punjab and Sindh Bank vs. X, the Supreme Court observed that the role of the external member in the Internal Complaints Committee is to act as an independent person who aids, advises, and assists the Internal Committee,
• In X v. Air France, the Delhi High Court held that the PoSH Committee will be invalid if the qualifications of the external member for PoSH are not aligned with the PoSH Act. Moreover, the Court observed that the external member for PoSH prevents any “undue pressure or influence” from the management of the organization.
• According to the Bombay High Court, in X vs. Rashtrasant Tukdoji Maharaj Nagpur University, the external member is an impartial and independent person. They command the respect of the senior management of a workplace and are also concerned with all the proceedings of the PoSH Committee.

In the above pronouncements, the courts have adequately directed the employers to constitute the PoSH Committee with care and deliberation. They have also given an insight into what functions exactly the external member for PoSH is expected to perform and what is the purpose of their appointment.

What to look for while selecting an external member for PoSH?

After looking at the role of the external member in the Internal Complaints Committee, it is also important that we consider what an employer should look for while appointing an external member.

• An external member needs to maintain complete neutrality to be an impartial person.
• They should not have any personal interest or knowledge of the case or any connection with it.
• They should not be in conflict with or biased against any party to the case.
• They should not have any association, professional or otherwise, with the organization or company, or workplace.

Therefore, an external member must have complete knowledge of gender bias and gender-based discrimination, organizational hierarchies, and power dynamics.

Who cannot be an external member?

The suitability of different individuals as external members of PoSH is crucial. There are certain individuals such as a former employee of the company, a family member of senior management, and a lawyer without experience in handling sexual harassment cases who cannot be empanelled as external members. Let’s dive a little deeper into this:

1. Former employee of the company 

A former employee of the company may no longer be associated with the organization, but they possess a personal connection to both the company and the team.

2. Family or friends of the senior management 

When considering a family member or friend of the senior management as an external member, it is essential to recognize that such an individual may not be suitable due to their susceptibility to influence. Their ability to fulfill their responsibilities as a neutral third party might be compromised.

3. Lawyer with no experience in dealing with PoSH cases 

In the selection process for an external member for PoSH, it is crucial to ensure that the chosen individual has relevant experience in dealing with sexual harassment cases and advocating for women’s rights. If a lawyer lacks experience in handling such matters or lacks an understanding of the causes affecting women, they should not be considered eligible for the position.

The road ahead for an external member for PoSH

External members need to be valued and their importance in the PoSH Committee understood. It is also important that external members do not lose sight of the purpose for which they have been appointed. They cannot fall short of the idea laid down by the Vishakha Guidelines that requires empowering survivors of workplace sexual harassment. Moreover, the PoSH Act needs to be more specific in its eligibility for the appointment of external members to ensure credibility. A mechanism to regulate the functioning of the external member and guides them should also be created.

How can Ungender help you?

At Ungender, our team of experts supports you with your end-to-end PoSH compliance. Our in-house and partner network experts act as external members of your PoSH committee. Leave us a message to get started.