Who can be the external member of a POSH Internal Committee?

What the Act requires

The external member has its origin in Vishaka v. State of Rajasthan (1997). The Supreme Court’s guidelines required a complaints committee to involve a third party, either a non-governmental organisation or another body familiar with the issue of sexual harassment, so that the committee could not be pressured from senior levels.³

Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 put that idea on a statutory footing. Every employer with ten or more employees must constitute an Internal Committee at each office or administrative unit, with a Presiding Officer, at least two members from among the employees, and one member from outside the organisation.¹

Clause (c) of section 4(2) offers two routes to that outside seat: a member “from amongst non-governmental organisations or associations committed to the cause of women”, or “a person familiar with the issues relating to sexual harassment”.

At least half of the members nominated to the Committee must be women. The requirement applies to the Committee as a whole, not to the external member in particular.

What the Rules add

Rule 4 of the 2013 Rules explains the second route. A person familiar with the issues relating to sexual harassment is a person who has expertise on those issues, and may include a social worker with at least five years’ experience in work that leads to conditions favourable to the empowerment of women, in particular in addressing workplace sexual harassment, or a person who is familiar with labour, service, civil or criminal law.²

Rule 4 is worded with reference to the Local Committee under section 7, where the same phrase appears. It is the only guidance the Rules give on the phrase, and it is generally applied to the external member of an Internal Committee as well.

The five-year requirement attaches to the social-work route. For the legal route the Rules prescribe no minimum number of years, no particular qualification and no certificate. An organisation choosing an external member is making a judgement about expertise, and it should be able to explain that judgement if a complaint is later challenged.

Who usually fills the role

External members are commonly advocates who practise in employment or workplace law, or people who work with women’s organisations. Some are counsellors or trainers with long experience of workplace harassment cases.

Each brings something different to an inquiry. An advocate will be attentive to procedure and to the principles of natural justice, which matter if the findings are later questioned before a court. A representative of a women’s organisation often brings experience of how complainants are affected by the process itself.

Independence and conflicts of interest

The purpose of the outside seat is to bring a view that does not depend on the employer. The Act does not list who is disqualified, but an organisation should avoid anyone whose independence could reasonably be doubted.

That usually rules out the company’s regular legal counsel, a consultant paid for other work, a recent former employee, and relatives of senior management. A person who sits on the committees of several unrelated companies is not, for that reason alone, conflicted.

In Medha Kotwal Lele v. Union of India (2012) and again in Aureliano Fernandes v. State of Goa (2023), the Supreme Court found that committees across the country had not been properly constituted, and directed governments and professional bodies to verify compliance.^{4, 5}

Appointing an external member

The employer nominates the external member in writing, usually through an office order that names every member of the Committee and states the date of nomination. Members hold office for a period not exceeding three years from that date.¹

The employer pays the external member fees or allowances for holding the Committee’s proceedings. Rule 3 prescribes an allowance of ₹200 a day and reimbursement of travel costs; anything beyond that is for the employer and the member to agree. The terms, the expected time commitment and the handling of confidential material are best set out in a short engagement letter.²

The order constituting the Committee must be displayed at a conspicuous place in the workplace, together with the penal consequences of sexual harassment.