PoSH External Members: Where Duty Ends and Liability Begins 

External Members were introduced into the PoSH framework to strengthen neutrality, but over time, their role has become layered with expectation, ambiguity, and risk. Organisations rely on them for both expertise and legitimacy, while complainants and respondents look to them for reassurance that the process is fair. 

 The Karnataka High Court’s recent order finally addresses the question that has long sat beneath the surface: Where does an External Member’s duty end and where does undue liability begin?

“The purpose of having such a member is to ensure the presence of an independent person who can aid, advise and assist the Committee. It obviates an institutional bias.”

– Punjab and Sindh Bank vs. X, the Supreme Court

 What Does the Law Mandate?

 Under Section 4(2)(c) of the PoSH Act, every Internal Complaints Committee must include one External Member, someone outside the organisation with experience in sexual harassment or women’s rights issues, often from an NGO or similar body. Without this appointment, the IC itself is not considered properly constituted under the law.

The intent is structural. By embedding an outsider into the committee, the Act introduces an additional layer of neutrality that internal teams cannot always guarantee. It reduces the risks of organisational bias, hierarchical pressure, and internal politics influencing the inquiry, and offers both complainants and respondents a degree of confidence that the process is not entirely governed by the organisation’s own power dynamics.

 The Core Tension: Independence vs. Liability

Internal power structures inevitably shape how workplace complaints are handled. To counter this, the law places an External Member on every IC, someone who can operate without organisational allegiances. Their role is substantive: they ensure procedural accuracy, uphold natural justice, call out conflicts of interest, and maintain the credibility of the inquiry when internal members may be limited by hierarchy or workplace dynamics.

Section 4(5) underlines the seriousness of this responsibility by allowing the removal of any IC member, internal or external, for breaches such as violating confidentiality, abusing their position, or failing to meet statutory qualifications.

Thus, the safeguards for External Members are not special statutory protections but the integrity of the structure itself. Their authority rests on neutrality, strong documentation, and strict adherence to due process. Their exposure arises when they deviate from these principles, through bias, confidentiality lapses, or procedural misuse, which can lead to removal or other civil and institutional consequences.

Karnataka High Court Draws The Line

In the case of Jayna Kothari vs. Manish Kumar & Anr., an advocate was serving as an external member of Zoomcar’s IC, which found the respondent guilty of sexual harassment and recommended his termination. The respondent later filed a misconduct complaint against her before the Karnataka State Bar Council, alleging bias and conflict of interest. The question before the Karnataka High Court was whether an Advocate’s participation as an external IC member constitutes professional misconduct under the Advocates Act, 1961, especially when there exists no advocate-client relationship or professional engagement?

“Findings rendered by the Committee cannot be construed to be a misconduct or violation of the Bar Council Rules.”

-Karnataka High Court

The Karnataka High Court ruled that the Bar Council complaint against the external IC member was a vengeful act by the terminated employee, lacking legal basis or standing. The Court clarified that serving as an unpaid external member constitutes a personal role, not professional legal practice under the Advocates Act absent any client-advocate relationship. IC findings cannot be repurposed for Bar Council proceedings, even if overturned, as such bodies require evidence of misconduct in actual legal duties.

What Does this Mean for External Members?

This means external members are safeguarded from:

• Retaliatory complaints: Aggrieved complainants or respondents lack standing to pursue Bar Council proceedings solely due to dissatisfaction with the IC process, absent any client-advocate relationship.
• Personal accountability for collective decisions: External members cannot be singled out through disciplinary actions for IC-wide outcomes, such as procedural choices or PoSH recommendations.
• Parallel litigation harassment: Vengeful collateral proceedings are quashable as abuse of process; the appropriate recourse remains a statutory appeal under PoSH Section 18.
• Future role disqualification: No external member can be barred from subsequent IC appointments based on unsubstantiated claims, only proven PoSH Act violations, like confidentiality breaches or position abuse under Section 4(5), trigger consequences.

If external members adhere strictly to the PoSH Act and its procedural mandates, they remain protected from such liabilities. 

Still, real-world inquiries bring practical challenges, questions of interpretation, maintaining documentation standards, managing high-stake hearings, and ensuring procedural consistency even under pressure. These are areas where both ICs and External Members can benefit from structured support.

To strengthen these processes for organisations, Ungender offers IC training and External Member services that reinforce the very safeguards the law envisions. The training helps Internal Committees build clarity on procedure, improve documentation practices, and approach complex cases with confidence and neutrality. Through our External Member services, organisations gain access to qualified, experienced external members along with expert case-management support, ensuring inquiries are conducted rigorously, fairly, and in full compliance with the Act.

Together, these interventions enable organisations to operate with procedural certainty and allow external members to discharge their statutory responsibilities with confidence rather than concern about unintended liability.