POSH Act and External Member

Author - Nalini Nagraj

The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 ("POSH Act") has been enacted as a comprehensive law to provide a safe, secure and enabling environment free of sexual harassment for all women.

This statute was enacted to fill in the legislative void which the judiciary had partially addressed in Vishaka and Others v. State of Rajasthan and Others (1997). In this original public interest litigation verdict, India's Supreme Court had framed a set of guidelines ("Vishaka Guidelines") for dealing with instances of workplace sexual harassment, now coded in the POSH Act. An employer is legally required under the POSH Act to comply with some statutory requirements. One of these is the establishment of an Internal Complaints Committee ("ICC"), an entity intended to receive complaints from an aggrieved woman about sexual harassment at work, as well as inquiring and making recommendations to the employer regarding the action required pursuant to its investigation of such complaint.

The requirement to Constitute ICC

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (Sexual Harassment Act) was notified in India in December 2013. It is mandatory to establish an ICC in workplaces where there are ten or more employees according to section 4 of the Act. A minimum of four members must be nominated for the ICC and women must be half of the members. The ICC is now called as an Internal Committee (IC), recreating its role beyond dealing with complaints only.

Eligibility to become an External Member

Section 4 Subsection (2) of The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 makes it mandatory for an external member to be appointed to the IC. According to the Act, the External Member should be a person from an NGO dedicated to the cause of Women OR a person knowing sexual harassment-related issues. It could also be a person with a legal background with some expertise in the matter.

Selection of an external member 

It requires serious consideration before an outsider is engaged as an ICC member. In the first place, the involving institution must understand what to expect from the ICC's External Member. Among other credentials, it is essential to check their past legal record. Someone who has experience in dealing with questions of sexual harassment should be chosen.The Delhi High Court has opined that the POSH external member appointment of the IC should be in strict compliance with the POSH Act and the rules thereunder Try to ensure the member has the reputation of acting as neutral and unbiased. An external member on the ICC should have the following qualities to live up to these demands:

• Knowledge, skills and ability to address sexual harassment issues/complaints in the workplace 
• Practice and a sound understanding of the legal aspects/implications.
• Such expertise will enable ICC's smooth functioning in terms of equitable and informed handling of complaints, which would not only be sound and fair but should be perceived in the same way by all stakeholders concerned.

Ineligibility of External Member

A person cannot serve as an external member if he/she has been accused of an offence or awaiting any investigation or found guilty in disciplinary proceedings or is pending disciplinary action against him/her.

Gender specification for an external member

Any individual meeting the necessary qualifications may serve as an External Member. Nevertheless, most organizations, having a woman as an External Member, are confident. It is a misconception that the External Member must be a woman from an NGO. 

Consequences of not recruiting the correct external member

One of the principal issues analyzed by the Delhi High Court in Ruchika Singh Chhabra v. Air France India and Another (2018) was the eligibility criteria for an outside member of an ICC. The High Court noted that the purpose of the complaints committee procedure and its fundamental concept was to provide the complainant with an assurance of an investigation mechanism that is objective, neutral and isolated from possible employer intrusions. It is thus crucial that the person named as the external member of an ICC fulfils the qualifications prescribed by the POSH Act satisfactorily. In the given factual context, the external member appointed by the employer on the ICC was neither a member of an NGO or association dedicated to women's rights nor was he able to establish his previous experience in dealing with sexual harassment cases. While it was asserted that the candidate was a lawyer with labour experience, the High Court held that such legal background would be sufficient to meet the criteria for appointing an external member of the Local Complaints Committee, but not an external member of an ICC.

The expected role of the external member

An entity will not meet the compliance provision under the 2013 POSH Act if it creates an ICC without an External Member on board the committee. An External Member advises the ICC on equitable, impartial and objective enquiries.

Having an external member on board can be for operations that can involve them only for inquiries and meetings, or invite them (based on their level of expertise in this area) to advise the organization on establishing the compliance infrastructure. Most of the time the organization's internal members are not equipped with the industry practices and the overall aspect of adhering to the POSH Act, 2013, and it is advisable to seek an external member's expertise for the same.

Inclusion of an external member adds a degree of objectivity and external insight to the ICC's work and assures the plaintiff of an inquiry process that is objective, impartial and not affected by the employer's potential pressures.

An external member could earn the employees' trust and trust and should be accessed by the employees without hesitation. It is expected he will not hush the grievances and put them under the carpet.

Conclusion

Every employer is required to ensure that the nominated members of the ICC are adequately trained and have a right level of understanding regarding the requirements of the Sexual Harassment of Women at Workplace Act, 2013. The external member's expertise would be instrumental in meeting this objective, as it is expected that the external member will already have a working understanding of issues relating to sexual harassment as well as the organization's specific needs. This opportunity also makes the external member financially attractive to be associated with the organization.