Institutional Bias vs. Legal Compliance: Lifespan of POSH Internal Committee

Most organizations believe that once an Internal Committee (IC) is formed, the job is done. But a ticking clock is often ignored: The 3-Year Mandate. > Section 4(3) of the POSH Act isn’t just a suggestion; it’s a compliance deadline. But what happens when that clock hits zero? Can you simply reappoint your trusted members, or does the law demand a ‘fresh start’? In this post, we dive into the grey areas of IC tenure, supported by judicial precedents that every HR and Legal professional should know

The appointment and tenure of Internal Committee (IC) members are governed by Section 4 of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act). While the law is clear on the maximum term of a single appointment, the “grey area” usually arises regarding the continuity of members.

1. The Statutory Rule: The 3-Year Term

Under Section 4(3) of the POSH Act:

“The Presiding Officer and every Member of the Internal Committee shall hold office for such period, not exceeding three years, from the date of their nomination as may be specified by the employer.”

2. Can Members be Reappointed? (The Grey Area)

The Act does not explicitly prohibit the reappointment of the same members. However, legal experts and judicial trends suggest a balanced approach:

• The Consensus: Most legal practitioners agree that members can be reappointed for a second term, but it must be done through a fresh written order/nomination. You cannot simply “extend” the old term indefinitely without a formal re-constitution.
• The Intent of the Law: The 3-year cap is designed to prevent “institutional bias” and stagnation. Relying on the same members for a decade may lead to a perception of the committee being too close to management, which can be challenged in court.
• Mandatory Change? It is not strictly mandatory to change every member if they still meet the criteria, but replacing at least some members (rotation) is considered a best practice to maintain the committee’s independent character.

3. Supporting Case Laws & Judicial Insights

While there isn’t a single Supreme Court judgment that says “reappointment is illegal,” several cases emphasize the importance of the composition and independence of the IC:

A. Global Health Pvt. Ltd. v. Local Complaints Committee (2019)

The Bombay High Court emphasized that the constitution of the IC must strictly adhere to the statutory requirements. If the term of a member has expired and they continue to sit on the committee without a valid reappointment, the entire inquiry they conduct could be declared void ab initio (invalid from the beginning).

B. Linda Eastwood v. Union of India & Ors. (2016)

The court observed that an employer cannot arbitrarily reconstitute a committee just because they don’t like a pending report. Conversely, this implies that the continuity of a committee during an active inquiry is protected. If a member’s 3-year term ends during an ongoing inquiry, they should generally be allowed to complete that specific inquiry to maintain the “Principles of Natural Justice,” but they must be formally reappointed for any future cases.

C. Aureliano Fernandes v. State of Goa (2023)

Though primarily about the right to a fair hearing, the Supreme Court laid down that “the IC must be seen to be objective.” If the same members are reappointed repeatedly, a complainant could argue “apparent bias” or “management influence,” potentially leading the court to set aside the IC’s findings.

Summary Table

Important Note: If a member is found guilty of disclosing confidential information or has a pending disciplinary case, they must be removed immediately under Section 4(5), regardless of their 3-year tenure.