Hon'ble Supreme Court reviewed a Public Interest litigation seeking the extension of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (commonly known as the POSH Act, 2013) to political parties.
The PIL highlighted the discrepancies in the implementation of the POSH Act, 2013, particularly concerning the establishment of Internal Committees (ICs) within political parties to address allegations of sexual harassment. In its ruling, the court recommended that the petitioner approach the Election Commission of India (ECI), deeming it the appropriate authority to urge political parties to adopt mechanisms in consonance with the provisions of the POSH Law.
This case has sparked discussions about the relevance of the POSH Act to entities like political parties, which often operate outside traditional workplace frameworks.1
The POSH Act and its Objective:
The POSH Act was enacted in the year 2013, as a response to a harrowing gang rape case in Rajasthan. The incident involved a social worker employed by the Rajasthan Government to raise awareness among rural communities about the harmful practice of child marriage. The activist Bhanwari Devi's efforts faced resistance from individuals who sought to preserve the tradition. Despite warnings to cease her campaign, she persisted and was subjected to a brutal gang rape.2
In the Public Interest Litigation (PIL) filed in connection with this case, the Hon'ble Supreme Court issued the Vishakha Guidelines, aimed at ensuring safer workplaces for women. These guidelines laid the foundation for the POSH Act, which seeks to protect women from sexual harassment in professional environments.3
Sexual Harassment within Political Parties:
Female political workers, particularly those operating at the grassroots level including the party workers on field, often engage in activities similar to social workers, such as spreading awareness and campaigning. During elections, they play a significant role in organizing rallies and parades. However, the nature of their work marked by inter party rivalries, male-dominated party structures, and late-night engagements, exposes them to heightened risks of sexual exploitation4.
A2013 study by UN Women5highlighted the prevalence of demands for sexual favors within political parties. Additionally, the Inter-Parliamentary Union survey revealed that 82% of women parliamentarians experience psychological violence, including sexual threats and derogatory remarks.6
The members of the political parties are bound by exclusive allegiance towards their parties as per the constitutional and political guidelines and therefore should be entitled to basic protections from the parties they serve. While women in most industries benefit from safeguards under the POSH Act, those in politics, face legislative ambiguities that deny them similar protections, raising questions about their entitlement to their fundamental rights against discrimination guaranteed under the Constitution of India.7
Applicability of the POSH Law to Political Parties
The POSH Act, formally known as the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, applies to all workplaces, whether in the public or private sector, including government organizations, non-governmental organizations (NGOs), private companies, educational institutions, hospitals, sports organizations.
The Act ensures the protection of employees, interns, trainees, contract workers, and any other individuals associated with the workplace.
Section 4 of the Actmandates employers to establish an Internal Committee (IC) for handling sexual harassment complaints, provide awareness and training programs, and develop a workplace policy that aligns with POSH guidelines.
While the POSH Act applies to all workplaces including government, non- government sectors, its implementation within political parties is debatable. Political parties are the influential entities in the Indian society, operating in an environment and a system where power dynamics can overshadow individual rights. This makes the enforcement of POSH law within these organizations crucial.
In Centre for Constitutional Rights Research and Advocacy & Ors. v. State of Kerala & Ors. (2022)the Hon'ble Court addressed the applicability of the POSH Act to political parties. The Centre for Constitutional Rights Research and Advocacy (CCRRA), along with other organizations, sought directions for political parties, including the Indian National Congress (INC), Bharatiya Janata Party (BJP), and Communist Party of India, to establish Internal committees under the POSH Act.8
The contentions of the petitioners were:
- That political parties, like other organizations with more than 10 members, should comply with the POSH Act and set up ICs to address sexual harassment complaints.
- They contended that the absence of ICs violated constitutional rights, includingArticles 14 (equality before the law), 15 (prohibition of discrimination), and 21 (protection of life and personal liberty).
The Issues before the court were:
- Whether political parties qualify as"workplaces"under the POSH Act.
- Whether Sexual Harassment of Women at Workplace (Prohibition, Prevent and Redressal) Act, 2013 apply to political parties.
The court analyzed the definitions of "workplace," "employee," and "employer" under the POSH Act and directs that the provisions of the POSH Act are designed for workplaces where a formal hierarchical relationship exists among their members. The Court analyzed the structural and the legal hindrances for the implementation of the POSH Law to the political parties that:
- Political parties are decentralized and are informal: The POSH Act, under Section 2(o), broadly defines'workplace'to encompass public and private organizations, hospitals, sports venues, and locations visited during employment. However, political parties fall outside this scope due to their unconventional and undefined workplace structures, as well as the lack of direct relationships between party workers and senior officials.9
- Employer-Employee Relationship: The Act requires an employer-employee relationship for its application. Political parties, being voluntary organizations, do not have such relationships, the party workers are the volunteer individuals who have pledged their participation towards the work without any expectation of employment benefits and are also not protected under the labour laws.
- Judicial Interpretation: The Court's judgment highlighted that political parties cannot be compelled to establish ICs, as they do not meet the criteria outlined in the POSH Act for the constitution of the IC's.
Consequently, the Hon'ble bench is of the view that the lack of formal organizational structures within political parties does not make them liable for the formation of internal committees within their structure and referred the petitioners to the Election Commission of India (ECI), identifying it as the appropriate authority to address and resolve the matter.10
The Role of Election Commission of India:
The Election Commission of India (ECI) primarily operates within the scope of superintendence, direction and control of the preparation of the electoral rolls as outlined in Article 324 of the Indian Constitution11. Its authority is well defined under the Representation of People's Act, 1951, but its power to enforce laws such as the POSH Act on political parties remains ambiguous. While the ECI has previously issued advisories to political parties such as non-inclusion of children in the rallies in consonance to the Child labor (Prohibition and Regulation) Act 1986, it has not enforced compliance with non-electoral laws, including the Right to Information Act (RTI), Therefor, while exercising its advisory power, the Election Commission may recommend political parties to implement laws for creating a safe and an inclusive workplace.12
Structure of Political Parties in India:13
Presently the structure of political parties in India is more hierarchical and are more organized to manage their operations, other than this there are rules and regulations which are to be adhered and a memorandum of association is required for their representation undersection 29A of the Representation of People's Act, 195114.
The basic structure for the political parties in India is as follows:
- National Leadership: At the top are the party president and senior leaders who make key decisions and set the party's agenda. This level often includes a working committee or executive council.
- State Units: Each state has its own leadership, mirroring the national structure. State units focus on regional issues and coordinate with the central leadership.
- District and Local Committees: These are the grassroots levels of the party, responsible for mobilizing support and addressing local concerns.
- Youth and Women's Wings: Many parties have dedicated wings to engage specific demographics, such as youth and women, to broaden their appeal.
- Advisory and Policy Committees: These groups provide expertise on various issues and help shape the party's policies and manifestos.15
Presently the Political parties follow a structure where internal redressal mechanism system is formed andthe parties manage discipline through these internal committees, like the 'Congress hierarchical committees'and theBJP's 'Disciplinary Action Committees.'These bodies address general breaches of discipline, such as "moral turpitude" or actions that harm the party's reputation. However, they lack explicit provisions for addressing sexual harassment and do not mandate the inclusion of women or external members, as required for ICs under the POSH Act.16
Way Forward
This issue persists as the focus of the Court is on the letter of the law rather than its spirit. While adhering strictly to the letter of the law may create challenges in identifying the employer, whereas interpreting the law in its spirit simplifies implementation of the POSH Law, as every political party already has a disciplinary committee in place. This disparity and ambiguity calls for urgent introspection and actions to ensure equitable protection for all women, regardless of their professional domain.
In 2013, the "Justice Verma Committee Report"17recommended that domestic workers be included under the purview of theSexual Harassment of Women at Workplace (Prevention, Prohibition, and Redressal) Bill, 2012. This inclusion was proposed in recognition of the vulnerabilities faced by domestic workers, a group often overlooked in workplace safety laws. However, domestic workers, being largely unorganized, face greater challenges compared to sectors like political organizations, which typically have more structured frameworks for addressing such issues.
Similarly, the "Hema Kohli Committee Report" serves as an important reference for enhancing workplace safety and promoting gender equality. Specifically addressing the Malayalam film industry, it highlights the sexual harassment and exploitation faced by women. The report underscores the need for implementing safety measures, even in unconventional and temporary workplaces like film sets, and urges compliance with laws such as thePOSH Act. This approach can inspire broader reforms to ensure the safety and dignity of workers across various industries.18
Surbhi Gandotra, Associate Advocate at S.S.Rana & Co. has assisted in the research of this article.
Footnotes
2 https://articles.manupatra.com/article-details/Sexual-Harassment-At-Workplace
3 Ibid.
5 https://www.unwomen.org/en/digital-library/publications/2014/6/violence-against-women-in-politics
6 https://www.drishtiias.com/daily-updates/daily-news-analysis/applying-posh-act-in-political-parties
8 https://indiankanoon.org/doc/94892413/
9 https://www.drishtiias.com/daily-updates/daily-news-analysis/applying-posh-act-in-political-parties
10 https://indiankanoon.org/doc/94892413/
11 Article 324- Superintendence, direction and control of elections to be vested in an Election Commission.
12 https://currentaffairs.khanglobalstudies.com/applicability-of-posh-act-for-political-parties/
13 https://aceproject.org/ace-en/topics/pc/pca/pca01/pca01b
14 https://www.indiacode.nic.in/bitstream/123456789/2096/9/A1951-43.pdf
15 https://aceproject.org/ace-en/topics/pc/pca/pca01/pca01a
17 https://prsindia.org/policy/report-summaries/justice-verma-committee-report-summary
18 https://posh.metisindia.com/5-key-findings-of-the-hema-committee-report-and-why-this-report-matter/
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