The Sexual Harassment in a Workplace (Prevention, Prohibition and Redressal) Act, 2013 (“POSH Act”/ “Act”) was implemented with the object of providing and ensuring a safe environment for women at workplace. It ensures a safe environment by:
The POSH Act applies to all organizations (public and private) with ten or more employees. It's a significant step towards gender equality and empowers women to work with dignity and respect.
Under the Act, employers must create a clear policy against sexual harassment and make sure all employees know about it. They also need to post a clear notice somewhere easily seen in the workplace that explains the punishments for sexual harassment and where any workplace has more than 10 or more employees, and Internal Complaints Committee (“ICC”) shall be constituted, the composition of which shall contain a minimum of three to four members wherein at least half of the members must be women and the presiding officer shall be a senior-level woman employee. The composition also contains an external member who shall preferably be a non-governmental organization (NGO) or association that advocates for women's rights. Alternatively, someone familiar with sexual harassment issues can fill this role.
When appointing an ICC, as required under the Act for any company with over 10 employees, there is often some confusion while selecting an external member for the same.
According to Section 4 of the POSH Act, an external member must be appointed who either has worked amongst non-government organizations committed to the cause of women or any person that is familiar with issues relating to women.
On initial reading, this may seem vague considering there is no specific qualification or role that the legislation suggests for the external member of the ICC. However, the reason for this perceived vagueness is inclusivity. The legislation is purposely vague in order to allow for the external member to be from any particular professional background, so long as they are empathetic to the complainant and have an awareness in women's rights.
It is essential to be mindful of these specific qualifications mentioned in Section 4(2) of the POSH Act in order to avoid legal liability. In the case Jaya Kodate v. Rashtrasant Tukdoji Maharaj Nagpur University (Writ Petition Nos. 3449, 3450 & 3451 of 2013), it was opined that the absence of a member without the requisite qualifications given under the aforementioned provisions is deemed to contravene the POSH Act and therefore, illegal. Neglecting these qualifications can lead to the company being asked to reconstitute their ICC, as seen in the case Ruchika Singh Chhabra v. Air France and Anr. (AIRONLINE 2018 DEL 22) wherein a lawyer with experience in labour laws was considered to be an inappropriate appointment for the role of the external member in the defendant company's ICC.
External members are typically provided a term of 3 years by the company. Hence, in the event that an external member does not feel to be the right fit for the company, they can always be replaced with somebody that fits the empathetic, neutral and unbiased characteristics that they are expected to possess. The Act also does not bar the company from reappointing the same external member for multiple terms, making it convenient for companies to maintain a member who upholds the good practices of the company.
The external member is an essential part of any ICC as they provide an unbiased, neutral perspective. They are not involved in or aware of any internal company politics and employee relationships, and thus base their opinions and findings on the presented facts and circumstances. Being an external member that is generally unknown to the workforce gives complainants and witnesses a sense of ease when talking about harassment faced at the workplace. It alleviates the pressure of speaking to a person who is a constant presence at the workplace or has a predisposed bias towards or against the complainant.
Therefore, it is important to choose an external member who understands the ways in which gender plays into the power dynamics at the workplace and is sensitive to the same. They should not possess any negative preconceived biases and they should also have no personal relationship with any person in the workforce so as to not pose a conflict of interest.
Authored by:
Diviay Chadha, Partner and Anushka Agarwal, Associate at Singhania & Co.
