Choosing The Right External Member For Your Internal Complaints Committee under POSH

Thinking of forming an Internal Complaints Committee/Internal Committee? Can’t decide how to pick an external member? We’ve got you covered! If your organisation has more than 10 employees, the POSH Act mandates the constitution of an Internal Complaints Committee (ICC). While appointing the presiding officer and two employees from the organisation is a task sometimes we just can’t wrap our heads around who to pick as an External member. First, let’s know why we even need someone from outside to chair such a sensitive meeting with no knowledge of the insides of our organisation.

Read the previous line again, we answered that for you already. It’s always easy for a sexual harassment victim to be less intimidated and more vocal before a person who’s unaware of the internal politics of an organisation and thus, free from resultant pressure or bias other employees might share. Now let’s understand the basics of who to choose.

Who is qualified to be appointed as an external member? 

Section 4(2)(c) of the POSH Act states that the external member should be:

1. a person from amongst non-governmental organisations or associations committed to the cause of women or
2. a person familiar with the issues relating to sexual harassment.

These might leave you a bit confused on account of their vagueness, but you’re not alone. A detailed analysis of the section sheds light on some of the grey areas of the Act: the section nowhere mentions what qualifies as being familiar with issues relating to sexual harassment. It also does not specify any prior experience or other qualifications of a person who is being appointed from a non-governmental organisation.

The uncompromising standard though is the expertise that an individual must possess in matters relating to women, to be able to empathise with the complainant. After getting an external member on board, in order to effectively translate the intent into practice, the organisation should lay emphasis and familiarise the external member with the workings of the organisation as awareness is essential in prohibiting and protecting women as well as in sensitising men of an organisation (awareness campaigns among employees are also incidentally mandated by the Sexual Harassment Rules). Therefore, an in-depth understanding of workplace dynamics and balanced view of gender conflicts is certainly important. An absence of negative preconceived notions and a neutral view, can be two additional factors which can make the external member more effective.

Want to re-appoint the External member of an outgoing ICC?

Now one might ask, in spite of all this orientation given to an external member, the organisation will have to bid them adieu after the completion of a three- year term. Don’t worry, you can re-appoint them after their term ends as the Act nowhere expressly bars it. And so is the case with other members of an outgoing ICC. However, it is recommended that the internal members should be shuffled and new members to the ICC should be added every term or in batches of 1/3rd.

What qualities to look for in an external member?

Since your external member has significant importance in the ICC and needs to be actively involved, along with ensuring total compliance of the POSH Act, s/he must be neutral, not possess any prior relationship with any of the parties (as it can invalidate the proceedings) and should provide a safe and comfortable environment to the parties.

Errors to avoid

Now that you know the law, read below a select few cases to avoid any errors that you might make while finalising your ICC.

Thinking of altogether skipping an external member? In Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University, petitioner had contended that the members of the ICC were simple employees, not possessing required legal knowledge or experience towards the cause of women. The Bombay High Court held that an ICC without the presence of members, who possess the requisite qualifications under section 4(2)(b) and (c), is illegal and contrary to the POSH Act.

You might think vagueness of the above conditions could allow you to employ anyone on board. But beware, you could be ordered to reconstitute your ICC! In Ruchika Singh Chabra v. Air France, the Delhi High Court ordered the reconstitution of the committee as the external member, being a lawyer practicing in labour courts was found to be unfit, having no relation with either an NGO or women’s cause.

Conclusion

While deciding to constitute an Internal Complaints Committee, choosing an external member appears to be a crucial hurdle for most, and so it must, since it can make or break your ICC in the long run, and even result in a reconstitution of the committee. On the other hand, if you happen to get your hands on a member who seems like a perfect fit, know that you can always hold on to them! An external member brings to the table neutrality and instils confidence in the victim about an unbiased decision, hence skipping their presence refutes the entire purpose of an ICC. We hope this article helps you understand why you need one and how to pick one. If you would like to understand more or need help in finding the right external member for your organisation contact the SHLC team.

Disclaimer: Note: This article is not a substitute for legal advice or consultation with a lawyer, who will be in a better position to advise you with respect to the facts and

circumstances of your case, but merely a tool to help the reader better understand laws relating to prevention of sexual harassment at the workplace