Unified Chambers
Loading
The external member is the one member of the Internal Committee who is not drawn from the employer's own workforce. Section 4(2) requires the employer to nominate a member from amongst non-governmental organisations or associations committed to the cause of women, or a person familiar with issues relating to sexual harassment. Advocates practising in this area are nominated on that second limb.
The reason the legislature put that seat there is structural. Every other member of the committee is an employee: the Presiding Officer under Section 4(2)(a) is a woman employed at a senior level at the workplace from amongst the employees, with provisos allowing a nomination from other offices or administrative units, and failing that from any other workplace of the same employer. A committee composed only of colleagues examines the conduct of colleagues, often colleagues senior to it. The external member is the counterweight the Act builds into the composition.
A point of precision worth carrying: the correct current term is Internal Committee, not ‘ICC’. Act 23 of 2016, by Section 3 read with the Second Schedule, substituted ‘Internal Complaints Committee’ with ‘Internal Committee’, and ‘Local Complaints Committee’ with ‘Local Committee’, with effect from 6 May 2016. The section heading of Section 4 still carries the old words; the operative text does not. Companies still search for the external member of ICC, and the acronym survives in HR policy documents, but a nomination order that uses the current statutory language reads better when it is later examined.
Two further points on scope. First, Section 4(1) is unqualified — every employer of a workplace shall, by an order in writing, constitute the committee. The widely quoted ten-worker figure comes from Section 6(1), which sends complaints to the Local Committee where the establishment has less than ten workers and no Internal Committee has been constituted, and also where the complaint is against the employer himself. Second, the definition of employee in Section 2(f) is deliberately broad: a person employed for any work on regular, temporary, ad hoc or daily wage basis, directly or through an agent including a contractor, with or without the knowledge of the principal employer, whether for remuneration or not, or working on a voluntary basis or otherwise. Contract staff, interns, consultants and volunteers are inside that definition — a blind spot in a surprising number of otherwise careful compliance programmes.
The employer pays. Section 4(4) provides that the member appointed from amongst non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed. The Act therefore contemplates a paid external member as part of the ordinary working of the committee.
That matters commercially as well as legally. Companies sometimes treat the external member seat as a favour to be sought from a contact, which produces an appointee who attends when convenient, does not read the file, and is unavailable when a complaint actually lands. A properly retained external member is a budgeted line, available for the sittings the inquiry requires, and accountable for the quality of the record the committee produces.
Engagement with this firm is on an annual retainer, scoped to workforce size and number of offices, and is discussed at the outset.
Section 4(3) fixes the outer limit: the Presiding Officer and every Member hold office for a period not exceeding three years from the date of their nomination, as specified by the employer. The employer may specify a shorter term. What the employer cannot do is leave a nomination running past its term and assume the committee is still validly composed.
A woman employed at a senior level at the workplace from amongst the employees (Section 4(2)(a)). Where no senior-level woman employee is available, the provisos permit nomination from other offices or administrative units, and failing that from any other workplace of the same employer.
At least one-half of the total Members so nominated shall be women (Section 4(2)). This is a composition rule for the committee as a whole. The Act does not separately require the external member to be a woman — but the one-half rule must be satisfied whichever way the external seat is filled.
One member from an NGO or association committed to the cause of women, or a person familiar with issues relating to sexual harassment (Section 4(2)). Term not exceeding three years under Section 4(3); fees or allowances paid by the employer under Section 4(4).
Where a company prefers a woman external member — for the confidence of complainants, or because the internal nominations leave the one-half requirement finely balanced — the firm can nominate a woman advocate from its team. Where a company prefers to keep the external seat with a particular advocate across a group of entities, that is equally workable, subject to the tenure limit in Section 4(3) being observed on each nomination.
The external member attends, participates and applies an independent mind — and, where the external member is an advocate, keeps the committee inside the statutory framework from the first meeting to the report.
The external member sits on the Internal Committee constituted under Section 4(1) and attends its meetings and inquiry sittings. Presence of the external member is what distinguishes a committee of colleagues from a committee that includes an outside mind, and it is the seat most often left vacant or filled on paper only.
A written complaint under Section 9(1) must come within three months of the incident, or of the last incident in a series, extendable by the committee for reasons to be recorded in writing by a further period not exceeding three months. The inquiry shall be completed within ninety days under Section 11(4). The report of findings goes to the employer within ten days of completion under Section 13(1), and the employer shall act upon the recommendation within sixty days of its receipt under Section 13(3).
Section 10 permits the committee, before initiating an inquiry and at the request of the aggrieved woman, to take steps to settle the matter by conciliation — but no monetary settlement shall be made as a basis of conciliation. Committees without legal input routinely blur this line, and a settlement recorded outside the statutory boundary is fragile.
The external member ensures the respondent has notice of the allegation and a real opportunity to answer it, that documents relied upon are shown to the parties, that the committee’s minutes record what actually happened, and that interim measures under Section 12 — transfer of the aggrieved woman or the respondent, leave, or other relief on her written request — are considered on their own footing and not as a finding of guilt.
The Section 13(1) report of findings is the document an appellate forum reads first. It must set out the allegation, the evidence, what the committee found and why. Where a recommendation on compensation arises, Section 15 governs the determination. Where the committee concludes that a complaint or evidence was false or malicious, Section 14 applies — and a mere inability to substantiate a complaint is not the same thing.
Section 16 prohibits publication or making known the contents of the complaint and the inquiry proceedings, and Section 17 provides the penalty for doing so. Alongside this, the committee submits an annual report under Section 21, and the employer under Section 22 includes the number of cases filed and their disposal in its annual report, or intimates the number to the District Officer where no such report is required.
Because the exposure in a POSH matter is usually procedural. An inquiry that reached a defensible conclusion can still be undone by how it was conducted — and the correction is cheapest while the inquiry is still running.
Where an inquiry is set aside, it is rarely because the committee lacked good faith. It is because notice was thin, the record was incomplete, a limitation extension was granted without recorded reasons, or the report did not disclose reasoning. An advocate sitting on the committee is trained to see those defects while they can still be cured.
In Aureliano Fernandes v. State of Goa, Civil Appeal No. 2482 of 2014, decided 12 May 2023, the Supreme Court set aside an inquiry for procedural infirmity and recorded serious implementation gaps in the working of the POSH Act across the public and private sectors, issuing directions aimed at effective implementation — including verification that Internal Committees are constituted and that their constitution and details are published, and calling for status reporting on compliance.
If the committee is not composed as Section 4(2) requires — no external member, fewer than one-half women members, a Presiding Officer who is not a woman employed at a senior level from amongst the employees — then every act of that committee is exposed. The composition point is taken first in any challenge because it does not require the challenger to reopen the evidence.
Section 26(1) makes non-compliance, including failure to constitute the Internal Committee, punishable with fine which may extend to fifty thousand rupees. Section 26(2) provides that on a subsequent conviction for the same offence the punishment is twice that which might have been imposed on a first conviction, subject to the maximum provided for that offence, together with cancellation of the licence or withdrawal, non-renewal or approval, or cancellation of the registration required for carrying on the business or activity.
Appeal is a live route for a dissatisfied party: Section 18(1) provides for an appeal to the court or tribunal in accordance with the service rules applicable, or where no service rules exist, in the prescribed manner, and Section 18(2) requires the appeal to be preferred within ninety days of the recommendations. Whatever the committee decides will therefore be read by someone else. The external member who is an advocate writes with that reader in mind.
Yes. Where the offices or administrative units of the workplace are located at different places or at divisional or sub-divisional level, the proviso to Section 4(1) requires the Internal Committee to be constituted at all administrative units or offices. A single head-office committee does not discharge the obligation for branches.
This is the most commonly missed obligation in multi-city companies, and it multiplies the external member requirement: each committee needs the external seat filled, each nomination runs on its own three-year clock under Section 4(3), and each committee owes its own annual report under Section 21. Section 19(b) separately requires the employer to display at a conspicuous place in the workplace the penal consequences of sexual harassment and the order constituting the Internal Committee under Section 4(1) — which means the display obligation lands at every one of those offices too.
The firm can hold the external member seat across several offices of the same group under a single engagement — in person within Delhi NCR, and virtually for offices elsewhere in India. Companies in Mumbai, Bengaluru, Pune, Hyderabad, Chennai and Kolkata are served on the same footing as companies in Delhi, Gurugram and Noida.
A written nomination order, a composition check before the first complaint, attendance as sittings arise, and an annual retainer. Nothing about the arrangement should be improvised once a complaint has been received.
The company issues the order in writing under Section 4(1) constituting the Internal Committee and naming the advocate as external member, for a term within the three-year ceiling in Section 4(3). Where the company prefers a woman external member, the firm nominates a woman advocate from its team.
Before the seat is taken, the firm reviews the proposed composition against Section 4(2) — a woman Presiding Officer employed at a senior level from amongst the employees, at least one-half of the nominated members women, and an external member on the statutory footing. Errors found at this stage cost nothing; errors found during an inquiry cost the inquiry.
Where offices or administrative units sit at different places or at divisional or sub-divisional level, the proviso to Section 4(1) requires a committee at all administrative units or offices. The firm can hold the external member seat across multiple locations of the same group under one engagement.
The firm serves companies across Delhi NCR in person, and companies elsewhere in India virtually. Committee meetings, inquiry sittings and deliberations are attended as they arise. Attendance across offices in different cities is a scheduling question, not a jurisdictional one.
Section 19(c) requires the employer to organise workshops and awareness programmes at regular intervals for sensitising employees, and orientation programmes for members of the Internal Committee. The external member is a natural person to deliver the orientation limb for the committee itself.
Engagement is on an annual retainer, scoped to workforce size and number of offices, and is discussed at the outset. Section 4(4) contemplates payment of fees or allowances to the external member by the employer for holding the proceedings of the Internal Committee.
Board reporting sits alongside the committee's own reporting: a company's Board's Report is required to carry a statement on POSH compliance and the constitution of the Internal Committee under the Companies (Accounts) Rules, and listed entities carry sexual-harassment complaint disclosures in their annual business-responsibility reporting. The numbers those disclosures use come from the committee's records — another reason the record should be kept to a standard from the beginning.
The external member seat is one part of a workplace-compliance programme that most companies now run alongside data-protection obligations. Our team advises on DPDP Act compliance — relevant here because inquiry records under the POSH Act are among the most sensitive personal data an employer holds, and Section 16 confidentiality and data-handling discipline have to work together. Where an allegation carries a parallel criminal dimension, the firm's criminal defence practice in Delhi NCR handles that track separately from the committee's work, as it must be.
More about the practice: Unified Chambers and Associates, data protection counsel, and the firm's pro bono initiative.
The external member is the member of the Internal Committee who does not come from the employer’s own workforce. Section 4(2) of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 requires the employer to nominate one member from amongst non-governmental organisations or associations committed to the cause of women, or a person familiar with issues relating to sexual harassment. Advocates who practise in this field are nominated on the second limb — as persons familiar with issues relating to sexual harassment. The seat exists so that the committee is not composed entirely of colleagues of the parties.
Yes. Section 4(2) sets out the composition of the Internal Committee and includes the external member as part of that composition — it is not optional, and a committee constituted without the external member is not constituted as the statute requires. Section 4(1) requires every employer to constitute the committee by an order in writing, and Section 26(1) makes non-compliance, including failure to constitute the Internal Committee, punishable with fine which may extend to fifty thousand rupees.
The employer. Section 4(4) provides that the member appointed from amongst non-governmental organisations or associations shall be paid such fees or allowances for holding the proceedings of the Internal Committee, by the employer, as may be prescribed. Paying the external member is therefore contemplated by the Act itself, and the engagement is a normal retained professional appointment rather than an accommodation.
Section 4(3) provides that the Presiding Officer and every Member of the Internal Committee hold office for a period not exceeding three years from the date of their nomination, as specified by the employer. The employer may specify a shorter term within that ceiling. At the end of the term the employer must issue a fresh nomination order — an expired nomination is one of the commonest defects found when a committee is examined during a contested inquiry.
The Act does not require the external member to be a woman. What Section 4(2) requires is that at least one-half of the total Members so nominated shall be women, and that the Presiding Officer shall be a woman employed at a senior level at the workplace from amongst the employees. Many employers nonetheless prefer a woman external member for reasons of comfort and confidence of complainants. The firm has women advocates and can nominate a woman advocate as external member where the company prefers one.
The external member attends the meetings of the Internal Committee, participates in the inquiry into the complaint, and applies an independent mind to the evidence. In practice the external member also keeps the committee to the framework of the Act — the three-month limitation in Section 9(1) and the recorded reasons required for the further extension of not more than three months, the bar in Section 10 on any monetary settlement as a basis of conciliation, completion of the inquiry within ninety days under Section 11(4), the report of findings to the employer within ten days of completion under Section 13(1), and confidentiality under Section 16.
Yes, where the offices or administrative units of the workplace are located at different places or at divisional or sub-divisional level, the proviso to Section 4(1) requires the Internal Committee to be constituted at all administrative units or offices. A company with a Gurugram head office and branches in Mumbai, Bengaluru and Pune needs a committee at each of those locations, and each of those committees needs its own external member seat filled.
Section 4(1) is expressed in absolute terms — every employer of a workplace shall constitute the Internal Committee by an order in writing. The often-quoted ten-worker figure comes from Section 6(1), which routes complaints to the Local Committee where the establishment has less than ten workers and no Internal Committee has been constituted, and also where the complaint is against the employer himself. It is more accurate to say that the smaller establishment’s complaints go to the Local Committee than to say that the Act does not apply below ten employees.
Internal Committee. Act 23 of 2016, by Section 3 read with the Second Schedule, substituted ‘Internal Complaints Committee’ with ‘Internal Committee’ and ‘Local Complaints Committee’ with ‘Local Committee’ with effect from 6 May 2016. The section heading of Section 4 still reads ‘Constitution of Internal Complaints Committee’, but the operative text speaks of the Internal Committee. Searches for ‘external member of ICC’ are common, and the acronym remains in wide use, but the current statutory term is IC.
The company issues the written nomination order under Section 4(1) naming the advocate as external member, for a term within the three-year ceiling in Section 4(3). The advocate then attends committee meetings and inquiry sittings as they arise — virtually for companies outside Delhi NCR, and in person within Delhi NCR where the company prefers. Engagement is on an annual retainer, scoped to workforce size and number of offices, and is discussed at the outset.
If your Internal Committee needs an external member — for one office or for every office of the group — our partner-led team can take the seat, with a woman advocate where preferred. Delhi NCR in person, pan-India virtually. Engagement is on an annual retainer, scoped to workforce size and number of offices, and is discussed at the outset.
Senior Partner Advocate Subodh Bajpai (LLM, MBA XLRI) leads the chambers' partner-led team of advocates and associates. Delhi High Court Complex, New Delhi 110003. Phone and WhatsApp: +91 84008 60008.
This page is general legal information about the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 and the services the firm provides. It is not legal advice, and it is not an invitation or solicitation. Please take advice on your own facts.