When the person accused of harassment sits above the complainant on the organisation chart, the standard POSH process starts to bend. The Internal Committee reports to leadership. Witnesses depend on the respondent for appraisals and projects. HR sits close to the very structure being questioned. On paper, the mechanism looks fine. In practice, power quietly reshapes who speaks, who stays silent, and who gets believed.
That gap between process and reality is where most POSH programmes fail, and it shows up in the numbers. Across roughly 700 NSE-listed companies tracked by The Udaiti Foundation, POSH complaints rose from 1,807 in FY 2022-23 to 2,325 in FY 2023-24, a 29% jump. Pending complaints climbed 67% over the same period. Rising complaints partly reflect rising awareness. The backlog of unresolved cases is the part that should worry every HR team, and cases involving senior respondents are the ones most likely to stall.
This article focuses on what HR can build differently. The law already tells you what a committee should look like. It says far less about how to run a fair inquiry when the accused holds institutional power, so that is where the practical work sits.
What the POSH Act Says About Seniority and the Internal Committee
The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 anticipated the power problem, though only partly. The statute builds a committee, hands it two safeguards against internal pressure, and leaves the harder work of applying them to HR. Courts have since sharpened what a fair inquiry looks like when rank enters the room.
Committee Composition Under Section 4
Under Section 4, every workplace with ten or more employees must constitute an Internal Committee. That committee must be chaired by a Presiding Officer who is a woman employed at a senior level, include at least two members committed to the cause of women or with legal or social-work experience, and include one external member drawn from an NGO or a person familiar with sexual harassment issues.
At least half the members must be women, and members serve a term of up to three years. For a fuller breakdown of committee composition and the wider compliance regime, TPB’s complete guide to the POSH Act sets out the statutory framework in detail.
The Two Safeguards Built for Power Imbalance
Most of the POSH Act’s machinery treats every respondent the same, whether he’s a peer, a junior, or the person who signs the committee members’ appraisals. That neutrality is fine in theory and fragile in practice, because a senior respondent can shape an inquiry in ways a junior one never could.
He may sit above the committee members in the reporting line, control their projects or promotions, and hold sway over the very witnesses being asked to testify. However, two provisions in the Act push back against that pull. They matter most precisely when the respondent is senior, and both are easy to reduce to a formality if HR doesn’t use them deliberately.
- The external member exists precisely to break internal pressure. When the accused is a department head or a founder, internal members carry an obvious conflict, and the external voice is meant to hold the line.
- The complaint against the employer is routed away from the IC entirely. Where the complaint is against the employer, or where the workplace has fewer than ten employees, the case goes to the Local Committee constituted at the district level by the District Officer, not to an internal body the employer controls.
Both provisions acknowledge the same truth: An IC embedded inside the employer’s structure cannot credibly judge the people who run that structure.
What the Courts Have Said About Rank
Courts have reinforced the point rather than diluting it. In the 2023 ruling in Aureliano Fernandes v. State of Goa, the Supreme Court flagged “serious lapses” in POSH enforcement across public and private institutions and issued directions for stricter compliance nationwide. In that case, the respondent, a Goa University faculty member facing complaints from students, challenged the committee partly on the ground that its members were junior to him.
The Court did not uphold that seniority argument. It set aside the inquiry on separate procedural grounds, natural justice being the core one. The signal for HR is worth holding onto: a respondent’s rank does not disqualify the committee judging him, but a rushed or unfair process will collapse the whole inquiry regardless of who sits on either side.
A more recent ruling flips the hierarchy question the other way. In Dr Sohail Malik v. Union of India, decided in December 2025, the aggrieved woman was a senior IAS officer and the respondent a junior officer from a different government department.
The Supreme Court held that a woman can file with the Internal Committee of her own workplace even when the respondent belongs elsewhere, reading “workplace” under Section 2(o) broadly. The practical takeaway for HR: jurisdiction follows the complainant, not the respondent’s position or department, which matters when a senior figure tries to steer a case toward a committee he can influence.
Why Hierarchy Breaks the Standard Process
Understanding the failure points is the first step to designing around them. Power distorts a POSH inquiry at four predictable stages.
| Stage | What Goes Wrong When the Respondent Is Senior |
| Reporting | The complainant weighs her appraisal, promotion, and job security against filing. Many choose silence. |
| Committee composition | Internal members report to, or depend on, the respondent. Neutrality becomes hard to feel, even when it exists. |
| Witness testimony | Colleagues fear retaliation and soften or withhold what they saw. |
| Outcome and enforcement | Even a finding against a senior leader rarely triggers strict penalties. Termination stays rare. |
The Silence Before the Complaint
The reporting stage is where most of the damage happens, because it happens invisibly. Deloitte’s Women @ Work 2024, a survey of 5,000 women across 10 countries, found that 43% had faced harassment or microaggressions at work in the past year, yet only about one in ten felt they could raise a complaint with their employer without fear for their career.
That confidence gap widens sharply when the respondent is senior. Reported complaints are the tip. The submerged part grows larger as the accused climbs the hierarchy, which is exactly why India’s rising NSE-listed complaint numbers still understate the real volume.
When Escalation Stalls: The TCS Nashik Lesson
The TCS Nashik case, which surfaced in April 2026, shows the enforcement failure in sharp relief. Nashik Police registered nine FIRs and arrested several employees, including team leaders and an Assistant General Manager. The AGM was arrested for allegedly ignoring a verbal complaint and failing to trigger mandatory POSH protocols.
Whatever the final findings, the case underlines a structural lesson: when complaints route through people who answer to the accused’s peers, escalation stalls. TCS has since engaged external experts to investigate and set up an independent oversight committee, which is exactly the direction the fixes below point toward.
Building an Inquiry That Holds Up Against Power
Here is where HR earns its keep. The goal is a process that stays credible even when the respondent could, in theory, influence it. Six practical measures do most of the work.
- Strengthen the external member’s role; don’t just tick the box. The Act requires one external member. When the respondent is senior, that member should co-lead the inquiry, not observe it. Pick external members with genuine legal or investigative standing, brief them on the power dynamics before the first hearing, and record their reasoning separately in the inquiry report. An external voice that can’t shape the outcome is decoration.
- Build a recusal rule and use it. If an internal IC member reports to the respondent, is a close associate, or has any personal relationship with either party, they must step aside for that inquiry. The Presiding Officer decides on recusals. If the Presiding Officer has the conflict, the employer can nominate an alternate Presiding Officer from another office, a sister concern, or the parent company. Write this into the POSH policy so it isn’t improvised mid-case.
- Constitute a senior-respondent protocol in advance. Don’t design the process during a crisis. Decide now what happens when a complaint names a CXO, a founder, or a board member. That protocol should specify an externally weighted panel, a direct reporting line to the board or an independent director rather than to management, and interim measures such as changed reporting relationships or paid leave for the respondent while the inquiry runs.
- Protect witnesses on paper and in practice. Witnesses stay silent when they fear consequences. Guarantee in writing that participation won’t affect appraisals or assignments, route witness scheduling through the external member rather than the respondent’s team, and make retaliation a separate disciplinary offence with its own penalty.
- Handle confidentiality as a shield, not a gag. Section 16 of the POSH Act prohibits publishing the contents of a complaint or inquiry. Use it to protect the complainant, not to bury the case. Leaks in senior-respondent matters almost always flow downward through informal networks, so restrict case documents to the panel, log every access, and treat a breach as misconduct. Where employees hesitate to file internally because the respondent is powerful, point them to the government’s SHe-Box central complaints portal, which masks the complainant’s identity from everyone except the IC Chairperson.
- Separate HR from the judgment where HR is compromised. When the respondent sits close to the HR function, or when HR itself is implicated, the complainant has no safe internal channel. TPB has examined this exact conflict in its analysis of why HR can’t investigate itself. In those cases, route the complaint to the Local Committee, an external ombudsperson, or a board-level channel. An inquiry the complainant doesn’t trust is an inquiry that won’t get the truth.
Where Programmes Still Fall Short
Even organisations that follow the letter of the Act trip over the same gaps in senior-respondent cases.
- The committee exists only on paper. A Presiding Officer who left months ago, an expired term, or a missing external member makes every inquiry legally vulnerable. Reconstitute the committee as soon as a member departs or a term ends.
- Training stops at definitions. Teaching people what counts as harassment doesn’t prepare an IC to run a fair inquiry against a powerful respondent. Train the committee on bias, conflict of interest, and evidence handling, not just Section 2(n). For clarity on what the law actually covers, TPB’s explainer on what counts as sexual harassment under the POSH Act is a useful baseline.
- The external member is symbolic. A member who attends but never questions, dissents, or writes independently adds nothing. In senior cases, an inert external voice is worse than none, because it lends false legitimacy.
- Findings don’t convert to consequences. A held complaint against a leader that ends in a quiet transfer or a warning tells the whole organisation that rank buys protection. Consistent enforcement is the only credible deterrent.
In the End…
Hierarchy isn’t a footnote in POSH cases. It’s often the whole case. The law gives you the scaffolding, an external member, a Local Committee route for complaints against the employer, confidentiality protections, but it leaves the hardest part to you: running a process that a frightened complainant and a nervous witness will actually trust when the respondent holds power over both.
Start with one honest audit. Pull your POSH policy and ask three questions. Does it say what happens when the accused is a CXO or founder? Can your external member genuinely shape an outcome, or just watch one? If a complaint named someone in your leadership tomorrow, would the complainant have a channel that doesn’t run through the people the accused drinks coffee with? If any answer is no, that’s your Monday morning task. A committee that only works when the accused is junior isn’t a POSH committee. It’s a formality waiting to fail.
FAQs
Can a committee made up of junior members judge a senior respondent in a POSH case?
Yes. A respondent’s rank does not disqualify the Internal Committee members judging him. In Aureliano Fernandes v. State of Goa, the Supreme Court did not accept the argument that committee members being junior invalidated the inquiry. What sinks a case is an unfair or rushed process, not the seniority gap itself.
Who handles a POSH complaint made against the employer or a founder?
Where the complaint is against the employer, or where the workplace has fewer than ten employees, the case goes to the Local Committee constituted at the district level by the District Officer, not to the Internal Committee the employer controls.
What role does the external member play when the respondent is senior?
The external member exists to break internal pressure. When the accused is a department head or founder, internal members carry an obvious conflict. In senior-respondent cases the external member should co-lead the inquiry rather than observe, with reasoning recorded separately in the report.
Can a woman file a POSH complaint if the respondent works in a different department or organisation?
Yes. In Dr Sohail Malik v. Union of India (December 2025), the Supreme Court held that a woman can file with the Internal Committee of her own workplace even when the respondent belongs elsewhere, reading “workplace” broadly. Jurisdiction follows the complainant.
How can HR protect witnesses in a POSH case against a powerful respondent?
Guarantee in writing that participation will not affect appraisals or assignments, route witness scheduling through the external member rather than the respondent’s team, and make retaliation a separate disciplinary offence with its own penalty.
