Introduction
In 2022, Kerala High Court held that the Prevention of Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act 2013 (“POSH Act”) does not apply to political parties. They are not obligated under the said Act to constitute an Internal Committee (“IC”) as there is no employer-employee relationship in their work dynamic.
This judgement surfaced again during the hearing of a Public Interest Litigation (“PIL”) petition, filed to seek judicial declaration of POSH Act’s applicability on political parties. Petitioners argued that the provisions of the Act applied to unorganized sectors, such as domestic work. Political parties are much more organized in comparison. They are a legal entity registered under Section 29A of Representation of People Act, 1951 (“RPA”) who are obligated file a Memorandum of Association for registration.
The Hon’ble Bench redirected the Petitioners to Election Commission of India (“ECI”), citing them as a competent authority to prevail on the matter.
Applicability of POSH in Political Parties
POSH Act applies unbiasedly to public and private entities falling within its criteria of “organization with 10+ employees”. In the judgement of Centre for Constitutional Rights Research and Advocacy v. State of Kerala & Ors., the Kerala High Court held that:
“Political parties which are not having employer-employee relationship with its members, and which are not carrying on with any private venture, undertaking, enterprises, institution, establishment etc. in contemplation of a ‘workplace’ as defined under section 2(o)(ii) of Act, 2013, are not liable to make any Internal Complaints Committee.”
Barriers to POSH implementation
Based on High Court’s rationale, the implementation of POSH in political parties face two major hinderance:
- Absence of Employer-Employee Relationship
Political parties do not establish a formal employment relationship with their party workers. The term worker is almost used ironically for they have no protection under any labour Code. They are not employees or worker in legal sense; they are volunteers who have pledged their loyalty to a party without aspirations of any employment benefits.
- Lack of Adherence to Traditional Definitions of “Employer” and “Workplace”
A political party is an association of people who share similar ideology and work together to achieve common goals.
The lack of employer-employee relationship makes it difficult to identify a particular individual as an “employer”. This identification is crucial for implementation of POSH.
Further, with regards to definition of “workplace”, the structure of political organizations is informal and decentralized. Party workers do not have a well-described workplace or any interaction with higher officials.
Structure of Political Parties
Today, political parties are more structured and organized. They have Constitution and Rules and even a Memorandum of Association that they need to for registration under RPA. Following is the basic framework of all the majority parties in India:
- Hierarchical Structure: The highest authority within the parties is the president who oversees activities of committees at different levels. There is clear chain of command provided.
- Multitiered Decision Making Bodies: There are three decision making authorities within the party. One at national level that formulates party policies and strategic decisions. There are similarly established units at state and district levels.
- Working Committees: There are designated committee that supervise and undertake daily activities of the party.
- Disciplinary Committees: There is a separate committee to deal with disciplinary action against party members. The committee is responsible for assessing complaints regarding party rule violations and can recommend actions like warning, suspension, or expulsion if the accused members is found guilty.
Although there are internal disciplinary authorities within the party, the scope of their actions is limited. They can only take up issues related to violation of party policies. And, unfortunately, most party policies do not contain explicit provisions against sexual harassment within the political organization.
POSH’s Objective and Ambiguity
Promulgated in 2013, the POSH Act resulted from a bone-chilling rape case in Rajasthan. Rajasthan Government employed a social worker to educate rural citizen about evils of child marriage. People who wanted the tradition to continue opposed her awareness drive. They warned her to stop. But when she did not, they subjected her to sexual assault.
In the PIL filed in this matter, the Apex Court issued Vishakha Guidelines to make workplace safer for women. Therefore, the objective of the legislative resultant of these guidelines, i.e., POSH Act, is to protect women from sexual harassment at their workplace.
Female political workers at grassroot level, like social workers, also undertake the task of message propagation. During election, they’re heavily involved in election campaigns and parades. Amidst inter-party rivalries, male-dominated party units, and late-night work, women members become vulnerable to sexual exploitation. According to UN Women study (2013), there is a prevalence of sexual favours and demands in political parties. Another survey, Inter-Parliamentary Union survey, revealed that 82% of women parliamentarians face psychological violence in form of sexual threats and remarks.
As per Constitution and Rules of parties, a political member can only be associated with one party at a time. Thus, if political workers exclusively work for a party, are not they entitled to even minimum protection from the party that they are loyal too?
Women in most industries have access to protection under POSH. But women in politics have been turned away by the courts on grounds of ambiguous voids within the legislation’s framework. Are female political workers not entitled to the right against discrimination promised under Article 14 & 15 of the Indian Constitution?
Does there exist an intelligible differentia that promotes women’s safety in one field with liberal interpretation of law and neglects it in another?
What Can Be Done?
Should women in politics be left to suffer sexual harassment because they chose an unsafe profession? Or is there another way to ensure workplace safety without POSH?
The Supreme Court redirected the Petitioners towards ECI. However, ECI’s authority to enforce POSH compliance in political parties is uncertain. At best, it can undertake an advisory approach to encourage parties’ compliance to the laws beyond RP Act.
In 2012, Justice Verma Committee conducted survey of sexual violence against women in India. One of the recommendations in their report suggested the inclusion of domestic workers within the ambit of POSH protection.
Although more organized than the domestic help sector, political parties lack traditional employer-employee relationships. However, if not an internal committee, there can be a suggestion for establishing an independent grievance redressal mechanism within the party.
Additionally, political parties can take the proactive step of including provision for sexual harassment prevention in their party’s Constitution and Rules. Such an action will reflect their true commitment to women’s safety more than the speeches spoken-and-forgotten in their rallies.
Authored by— Ayush Bardhan, Trainee Associate, The Legal Swan
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