Quick answer: The external member is the Internal Committee seat meant for an independent person: a member of an NGO or association committed to the cause of women, or a person familiar with issues relating to sexual harassment (Section 4(2)(c)). They act as a full member in conciliation, hearings and findings. An NGO member’s allowance is paid by the employer (Section 4(4)), but courts expect independence from the employer.
Who can be the external member on an Internal Committee?
Section 4(2)(c) of the Act adds to the committee “one 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”. So there are two routes: the NGO route and the expertise route.
- The external member does not preside. Under Section 4(2)(a), the Presiding Officer must be a woman employed at a senior level, from amongst the employees.
- They count towards the gender rule. At least one-half of the members nominated must be women (proviso to Section 4(2)).
- Rule 4 is not your test. Rule 4 of the 2013 Rules describes a “person familiar with issues relating to sexual harassment”, but it is written for Section 7(1)(c), the Local Committee.
In LPA 237/2018 (Air France India), decided on 30 May 2018, a Delhi High Court Division Bench held the employer “clearly in error in relying on Rule 4” for its Internal Committee. The employer had nominated a lawyer who was secretary of an employers’ association, and nothing on record showed his experience with sexual harassment cases, the cause of women, or an NGO.
What does the external member do in an inquiry, step by step?
The Act gives the external member no separate job description. They hold the committee’s powers and duties as one of its members, at every stage below.
| Stage | Time limit | Source | The external member’s part |
|---|---|---|---|
| Complaint filed | Within 3 months of the incident or last incident; extendable by up to 3 months for reasons recorded in writing | Section 9(1) | Any member must help if she cannot write the complaint; joins the decision on any extension |
| Conciliation (only at her request) | Before the inquiry starts | Section 10(1) | No monetary settlement can be the basis of conciliation |
| Copy of complaint to respondent | Within 7 working days of receipt | Rule 7(2) | Shares the committee’s duty to send it on time |
| Respondent’s reply | Within 10 working days of receiving the documents | Rule 7(3) | Reads the reply, documents and witness list |
| Hearings | At least 3 members, including the Presiding Officer, present | Rule 7(7) | Hears both sides and witnesses; shares the civil-court powers in Section 11(3) |
| Inquiry completed | Within 90 days | Section 11(4) | Joins the deliberation and findings |
| Report to employer | Within 10 days of completing the inquiry | Section 13(1) | Shares in the findings and recommendations |
| Employer acts | Within 60 days of receiving the recommendation | Section 13(4) | None; this is the employer’s duty |
| Appeal | Within 90 days of the recommendations | Section 18(2) | Stays bound by confidentiality under Section 16 |
A worked example. A complaint reaches the committee. A copy goes to the respondent within 7 working days, and his reply is due within 10 working days of receiving it. Hearings follow, each with at least three members present, including the Presiding Officer. Neither side may bring a lawyer (Rule 7(6)). If a party misses three consecutive hearings without sufficient cause, the committee may end the inquiry or decide ex parte, but only after 15 days’ written notice (Rule 7(5)). The inquiry closes within 90 days, the report reaches the employer within 10 days after that, and the employer has 60 days to act.
Must the external member attend every hearing? Rule 7(7) sets the minimum at three members including the Presiding Officer, and does not name the external member in that minimum. But the Supreme Court has said the purpose of the Section 4(2)(c) member is “to ensure the presence of an independent person”. An inquiry held without them is harder to defend, so plan sittings around them.
Who pays the external member, and does that affect independence?
Section 4(4) says the NGO member “shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed”. Rule 3(1) of the 2013 Rules (G.S.R. 769(E), 9 December 2013) prescribes two hundred rupees per day, plus travel by set modes or the actual amount spent, whichever is less.
Being paid by the employer is what the law expects. Being tied to the employer is different. In Civil Appeal No. 1809 of 2020 (Punjab and Sind Bank), decided on 25 February 2020, the Supreme Court found the bank’s “independent” member was a panel lawyer of the bank at the material time. The Court said an independent member “obviates an institutional bias”, saw no reason for the bank to refuse the complainant’s request to replace her with “a truly independent third party”, and found “a fundamental defect in the constitution of the ICC”.
The Act has no separate conflict-of-interest clause. Based on these judgments, check before you nominate:
- Is the person on your legal panel, a retained adviser or a vendor?
- Do they have a personal or business link to people likely to appear before the committee?
- Can you show, on paper, their NGO link or their familiarity with sexual harassment issues?
How long does the external member serve, and when must they be removed?
Under Section 4(3), every member holds office for the period the employer specifies, “not exceeding three years” from nomination. Write the dates into the nomination order.
Section 4(5) says a member “shall be removed” if they:
- breach Section 16 (publishing or making known the complaint, identities, proceedings, recommendations or action taken);
- are convicted of an offence, or an inquiry into an offence is pending against them;
- are found guilty in disciplinary proceedings, or such proceedings are pending against them; or
- have abused their position so that continuing would be prejudicial to the public interest.
The vacancy is filled by fresh nomination. Under Section 17, a person handling the complaint who breaches Section 16 is liable to penalty under their service rules or, where none exist, as prescribed; Rule 12 prescribes that the employer recovers five thousand rupees.
What happens if the committee has no valid external member?
In LPA 237/2018, the Delhi High Court held the committee “clearly invalid” because the member did not meet the statutory qualifications. It set aside the committee’s constitution, proceedings and report, and directed that the committee be reconstituted “within thirty days” and inquire afresh. The seat is not a formality: if it is empty, or filled by someone who does not meet Section 4(2)(c), the committee’s findings are open to challenge.
Frequently asked questions
No. Section 4(2)(a) of the POSH Act says the Presiding Officer must be a woman employed at a senior level at the workplace, from amongst the employees (if none is available, she is nominated from another office, unit or workplace of the same employer). The external member under Section 4(2)(c) sits as a member, not as the presiding officer.
For a member drawn from an NGO or association, Rule 3(1) of the 2013 Rules sets an allowance of two hundred rupees per day for holding the proceedings, plus travel by set modes or the actual amount spent, whichever is less. Section 4(4) of the Act makes the employer responsible for paying it.
It is risky. In Civil Appeal No. 1809 of 2020, the Supreme Court found a bank’s “independent” member was its own panel lawyer and called this “a fundamental defect in the constitution of the ICC”. Choose someone with no professional tie to your organisation.
For the period the employer specifies, but not more than three years from the date of nomination, under Section 4(3) of the Act. Record the start and end dates in the nomination order and renew or replace the member before the term ends.
Rule 7(7) requires at least three members, including the Presiding Officer, at each inquiry sitting, and does not name the external member in that minimum. Even so, the Supreme Court stresses the independent member’s role, so schedule hearings when the external member can attend.
No. In LPA 237/2018, the Delhi High Court held that Rule 4 applies only to Section 7(1)(c), the Local Committee. For an Internal Committee, the test is Section 4(2)(c): an NGO member committed to the cause of women, or a person familiar with sexual harassment issues.
Need an external member for your Internal Committee?
Dr. Priya Dubey Sharma, Founder & Consulting Psychologist, can serve as the External Member on your Internal Committee. See how it works on our POSH compliance page, or run the free committee check. For the full text of Section 4, read our Section 4 guide; for hearings, the Internal Committee FAQ; and for more answers, the POSH FAQ.
Sources
- The POSH Act, 2013 (Act No. 14 of 2013), India Code
- POSH Rules, 2013, G.S.R. 769(E), Indian Kanoon
- Supreme Court, Civil Appeal No. 1809 of 2020, 25 February 2020, Indian Kanoon
- Delhi High Court, LPA 237/2018, 30 May 2018, Indian Kanoon
Plain-language guides to POSH compliance for Indian employers, based on the Act, the Rules and court rulings. POSH compliance at Manas Center is led by Dr. Priya Dubey Sharma, Founder & Consulting Psychologist, as External Member.
