POSH must not stop at the doors of political parties

Keeping parties out of the scope of sexual harassment laws severely undermines protection for women

In September, the Supreme Court of India had to consider whether political parties would come under the ambit of the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (POSH Act), and if they had to establish the Internal Complaints Committees (ICCs) for the redressal of complaints of sexual harassment that took place within their workplace, like any other organisation. Unfortunately, the Court chose not to interfere with the order of the Kerala High Court, which held that political parties do not have an employee-employer relationship with their members, do not come under the definition of ‘workplace’, and hence, are not liable to establish ICCs under the Act.

Is the POSH Act only for employees? The Act aims to prevent and provide redress against sexual harassment in the workplace. Section 3 of the Act says, “No woman shall be subjected to sexual harassment at any workplace”. If we observe closely, the Act uses ‘woman’ and not a ‘woman employee’. Furthermore, the definition of ‘aggrieved woman’ includes ‘a woman, of any age, whether employed or not’. The definition of an ‘employee’, under section 2(f) of the Act, includes someone who works on a ‘voluntary basis or otherwise’, ‘whether for remuneration or not’. This makes it clear that the Act is not intended to cover only the employees.

The preamble of the Act says, “An Act to provide protection against sexual harassment of women at the workplace.” It is important to understand the definition of ‘workplace’, because the Act provides the mechanism for the redressal of sexual harassment at the ‘workplace’. The workplace is defined under section 2(o) of the Act. The definition covers any “establishment, society, trust, non-governmental organisation, unit or service provider’ carrying on various activities, including ‘service’. Political parties, which are ‘associations of persons’ under the Representation of the People Act, 1951 (RP Act), would fit into terms like ‘establishment’ and ‘Non-Governmental Organisations’, which would provide ‘service.’ Hence, contrary to what the Kerala High Court had concluded, political parties would fall within the definition of the ‘workplace’. As far as the sexual harassment happens in the ‘workplace’ and there is a certain amount of control or supervision on the respondent (need not be strictly ‘employee’), the Act is applicable.

The respondents before the Kerala High Court argued that “they are employing only a very meagre workforce to manage the office and many of the respondents have contended that they have no women employees/workers in their office”. This statement is factually incorrect as far as political parties are concerned.

The parties have an obligation under the RP Act to submit annual audit reports to the Election Commission of India. If we peruse these reports, we will find that these parties spend crores of rupees under the head of employee cost. For example, the annual audit report submitted by the Bharatiya Janata Party states that the party has spent Rs 73,52,95,789 in 2024 as employee costs. The Indian National Congress submitted that it has incurred a cost of Rs 27,18,39,499 as employee costs. The contention that the parties do not have enough employees to constitute the ICCs is flawed.

A rigid, limiting definition

It may be argued that ICCs are only for the employees of the party and not for the women functionaries, as there is no employer-employee relationship between these functionaries and the party. This argument is untenable within the scheme of the POSH Act. The Act governs sexual harassment that happens in the workplace. As long as there is an allegation by an aggrieved woman (in this case, a functionary) in the workplace of the party, it falls under the scope of redress. Consider a woman who is at a party office for a meeting where she faces sexual harassment from an employee, a leader, or a functionary of the party. As their work comes under the ambit of anyone who works voluntarily, for remuneration, or not, or if there are express or implied terms of employment, this action can be redressed under the Act.

The jurisdiction to provide redress under the Act comes from the employer’s power to regulate the workplace, allow or disallow people into their workplace, by express terms or otherwise, and from the employer’s duty to prevent and redress all complaints of sexual harassment happening in the workplace.

The POSH Act applies to political parties even if the complainant is not their employee. It is enough that she faced harassment in the party’s workplace by someone falling within the Act’s broad definition of “employee,” which includes both staff and voluntary workers.

The decision of the Court to apply the POSH Act to a traditional employee-employer relationship is deeply flawed and is against the letter and spirit of the Act. As it is, the political arena and parties are, unfortunately, male-dominated entities. The lack of protection against sexual harassment should not further this divide and make these places unsafe for women.

(The writer is a PhD research scholar at NLS-Bengaluru and a faculty member at the School of Law, Christ University)

Disclaimer: The views expressed above are the author's own. They do not necessarily reflect the views of DH.