Context: The Supreme Court heard a PIL stating that the Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 (PoSH Act) should apply to political parties.
Relevance of the Topic:Prelims: Key facts about PoSH Act.
Salient features of the PoSH Act
- The Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, commonly known as the PoSH Act, was passed in 2013.
- The act defines sexual harassment at the work place and creates a mechanism for redressal of complaints. It also provides safeguards against false or malicious charges.
What constitutes sexual harassment under the PoSH Act?
- Sexual harassment includes “any one or more” of the following “unwelcome acts or behaviour” committed directly or by implication:
- Physical contact and advances
- A demand or request for sexual favours
- Sexually coloured remarks
- Showing pornography
- Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.
Key provisions of the Act:
- Every employer is required to constitute an Internal Complaints Committee (ICC) at each office with 10 or more employees.
- The District Officer is required to constitute a Local Complaints Committee at each district, and if required at the block level.
- The Complaints Committees have the powers of Civil Courts for:
- gathering evidence
- summoning and requiring the attendance of any person and interrogating him under oath
- Requirement to discover and produce documents.
- The Complaints Committees are required to provide for conciliation before initiating an inquiry, if requested by the complainant.
- Non-compliance with the provisions of the Act shall be punishable with a fine of up to Rs 50,000. Repeated violations may lead to higher penalties and cancellation of licence or registration to conduct business.
Applicability of PoSH Act:
- Section 3 (1) - Prevention of sexual harassment – “No woman shall be subjected to sexual harassment at any workplace.”
- Definition of Workplace is Expansive and it includes:
- Organisations, institutions, and other public sector bodies that are established, owned, controlled or wholly or substantially financed by funds provided directly or indirectly by the appropriate government.
- Organisations in the private sector, hospitals, nursing homes, sports venues, houses.
- It also covers locations visited by an employee during the course of employment.
- The aggrieved victim under the Act can be a woman of any age whether employed [at the workplace] or not, who alleges to have been subjected to any act of sexual harassment.
Also Read: Sexual Harassment at Workplace [POSH Act]
Applicability of PoSH Act on Political Parties:
- Provisions of the constitution of the Internal Complaint Committee (ICC) by political parties have not been made clear in the text of the Act.
- Kerala High Court has addressed this question previously in the case of Centre for Constitutional Rights Research and Advocacy v/s State of Kerala and others (2022)
- In this case the court took up several petitions seeking the establishment of ICCs in television, film, news and political organisations.
- On the subject of political parties, the court held that “there is no employer- employee relationship with its members and political parties do not carry out any private venture undertaking enterprises institution establishment etc. in contemplation of workplace under the PoSH Act”.
- Thus the court held that political parties are not liable for establishment of internal complaint committee
- In the present case, the Supreme Court directed the petitioner to first approach the Election Commission of India (ECI) to prevail upon the recognised political parties for creation of an in house mechanism to deal with complaints of sexual harassment.
Challenges w.r.t Political parties:
- Defining Workplace: Party workers often have little interaction with high level officials and are hired temporarily to operate on the field without a defined “workplace”.
- Defining Employer: As the employer is responsible for setting up the ICC. The court or the ECI will have to clarify who the employer is in the context of a political party.
What do experts have to say?
- The term “workplace” under the PoSH Act includes locations visited by an employee, which could allow the Act's protection to extend to party workers in the field.
- The Act also provides a wide definition for the term “employee”. It includes people who are employed temporarily, contract workers, volunteers with or without the knowledge of the principal employer.
- Moreover, political party constitutions often provide organisational hierarchies which could help determine who the “employer” would be.
Current handling of sexual harassment complaints:
- Currently parties handle internal discipline through their committees, for example BJP has Disciplinary Action Committee while Congress has higher level committees to take action against individual members and committees that are subordinate to it.
- However, there is no requirement for these committees to have women or external members as would be required for an ICC under the POSH Act.
- Moreover, sexual harassment could only fall under certain actions that would be considered “Breach of Discipline”, amounting to lower the prestige of the party or being guilty of offences involving moral turpitude.